Push-Backs in the Aegean and the ECtHR’s failure to hold states accountable for systemic human rights violations

[Music] You are listening to the Human Rights Podcast hosted by the Irish Centre for Human Rights at the University of Galway. This is a platform for dialogue and debate on issues related to human rights and international law. I'm Alessandra Kau and on today's episode of the Human Rights Podcast, I will be talking to Nief Keditabal about the topic after effects. In the Igan, the Rulla Frontex and the European Court of Human Rights failure to hold Greece accountable for serious human rights violations committed in the Igan during systematic pushback operations. In a recent journal article titled "Reconising Rescue, Law and the Materialsity of Migration Management in the Igan," Nief Keditabal and Ismar Mann write, "Since March 2020 asylum seekers arriving on Greek islands or in territorial waters have been dragged out to sea, forced by the Hellenic Coast Guard into inflatable orange life rafts, shaped like a tent, and letter-drift." These incidents highlight a pattern of violations that developed into a de facto government policy of summary and collective expulsions, one which implicates the European border and Coast Guard agency Frontex. In the next 45 minutes or so, we will be discussing the origins of this new practice of summary expulsions by Greek authorities, why and how it violates human rights and international law, why it is incredibly difficult to challenge this practice in domestic and international courts, and how the European Court of Human Rights has addressed the practice in its first case regarding summary expulsions in the Igan. Before we dive into the topic, however, I would like to introduce my guest, Dr. Nief Keditabal, Nief is a postdoctoral researcher at the School of Law and Criminology at Main Newth University, where she focuses on the ways in which the enforcement of the land border on the island of Ireland impacts migrants, including asylum seekers and refugees. This is part of an IRC funded project led by Dr. Lindsay Black, called Khan Space, Penal Nationalism and the Northern Ireland Border. Nief is recently completed her PhD at the IRC for Human Rights University of Gateway. Her thesis titled Vulnerability as a Technology of Migration Management, from humanitarian exceptions to border violence, focused on EU migration policy, access to asylum and border violence at the external borders of the EU, with a specific focus on Greece's maritime border. As part of her PhD, she was also involved in legal advocacy work that informed and drew on her academic and investigative research, including a number of submissions to the European Court of Human Rights, challenging systematic pushbacks of asylum seekers in the GNC. Nief is also involved in strategic litigation on this issue with the Global Legal Action Network. So welcome, Nief. Thanks for being here. So let's dive into the topic. We often hear the term pushbacks in the news in relation to forced expulsion and returns of migrants and asylum seekers at the external borders of the EU. But what exactly are pushbacks? What is their purpose and what do they have to do with the refugee-lapped principle of non-reformal? So pushbacks are a form of informal and unlawful expulsion, and they happen when border authorities intercept people, either at sea, on land, shortly after people arrive in a country, and return them across a border without registering them, without assessing their individual situation, and without giving them the chance to apply for asylum or to challenge their expulsion. So these operations are usually coercive, oftentimes violent, and are carried out without transparency or any kind of oversight. So there are summary expulsions basically, deportations that are taking place outside of any legal framework. And the purpose of pushbacks is to keep people out, to keep unauthorized migrants, including those who intend to apply for asylum out of a state's territory, and most importantly, the aim is deterrence as well, so to reduce the number of people that can access asylum procedures, preventing them from ever reaching the territory where their rights would be triggered, where they'd have the chance to claim protection. So from a legal point of view, pushbacks violate several different core principles over refugee law and human rights law. So the kind of most central violation that pushbacks are associated with is the principle of non-reformal month, which creates obligations on states to not return people to a place where they would be at risk of persecution, and more broadly where they'd be at risk of other kinds of human rights violations. So that's one of the violations that pushbacks entail, but they also create violations of the prohibition on torture, so they result in exposing asylum seekers to many different forms of ill treatment. But there's other kinds of violations which pushbacks also result in violations of the right to life. Arbitrary detention is often really central to pushback practices as well. Of course, people are denied access to apply for asylum, and because pushbacks are carried out covertly, because those affected are often left without any access to legal support, pushbacks also violate the right to an effective remedy. They don't have any opportunity to actually challenge the practice that they're being subject to. Thank you. So these forced expulsions, forced returns have been documented in many different states all around Europe since the 2000s, but also before, and especially since the so-called refugee crisis in 2015. However, one country has been very much at the centre of attention, and that is Greece. Can you tell me more about maybe the history of pushbacks or forced expulsions in Greece, how come that these violent pushbacks at the border to Turkey have become a de facto systematic state practice over the past years? Yeah. So pushbacks have a really long history in Greece, not just Greece, but also other countries at the external borders of the EU. So when it comes to Greece, we've seen summary expulsions at the land border with Turkey in the Evers region reported for decades really, and at sea in the AGMC, there's been similar practices as well, especially those which were documented around the mid-2000s. Then reports of these kinds of practices seem to have decreased somewhat after the 2016 EU-Turkey statement. So this was an agreement that basically outsourced much of the containment of migrants to Turkey, so it outsourced the containment, but also the deterrence. But what happened was that when that arrangement began to crumble in early 2020, pushbacks intensified, so we saw a really increase in the visibility and scale of pushbacks at Greece's land and sea borders. And what we've seen now is a really crystallised systematic policy all across the Greece's borders. So people are not only intercepted at sea or at the land borders, but are also removed after having actually made it to Greek territory. So there's been many cases of people who've been essentially abducted from islands or from deep within the state territory, sometimes directly from reception centres, from camps or from police custody, and then expelled. So the scale of pushback practices in Greece and elsewhere across the external borders of the EU is very much linked to the structure of EU migration law and to the kind of structure of migration management as the kind of central paradigm for migration policy in Europe. So part of the reason why we see such systematic pushbacks unfolding and continuing with such impunity is because of the structure of EU asylum law. So under the Dublin Regulation, this is a kind of central organising principle in EU migration law or EU asylum law. Under this principle, the country where a person first arrives irregularly is usually the one responsible for processing somebody's asylum claim. So this place is a really heavy burden on states at the external borders of the EU like Greece to essentially keep people out. And it creates a really powerful incentive for states at the external borders to prevent arrivals from ever being officially registered as well. And this kind of power structures is very much constantly reinforced by the EU so we see huge amounts of funding going to states like Greece to actually contain asylum seekers there to prevent them from moving onward. Even the efforts to increase the humanitarian conditions for asylum seekers in places like Greece is also linked to this because of course it's necessary to fulfill human rights obligations but it's also necessary from the perspective of other EU member states. If they want to return people to Greece from their countries, then they have to show that there is at least ostensibly a certain kind of level of protection available to them. So it's very much like rooted in the structure of EU law. I remember I think I'm not sure if it was Ursula Fanderlarian or someone else from the commission who will name Greece as their shield of Europe in the context of migration law and keeping migrants out of sentences. Exactly and that was directly after the events that took place in early 2020. And then Turkey announced it was no longer going to contain migrants and refugees there and allowed this whole kind of border crisis as it was framed. That's really the event that Greece used to then justify denying people access to asylum and carrying out pushbacks on this scale. There was asylum seekers that were shot at, there was at least one report of a person who died and that's the context in which Ursula Fanderlian praised Greece for being the shield of Europe. So you've mentioned that there is pushbacks or explosions happening at the land border and at the sea border or even that persons are being picked up within the country or from the Greek islands that have already arrived on Greek territory. In a blog post from 2020 actually called "Tens at Sea" "Hugreek Officials" used rescue equipment for illegal deportations. You talk about a new method of deportation employed by Greek authorities since around 2020, more as 2020 I think, that have been named Driftbacks. Can you talk a bit more about this? What are Driftbacks? When do they happen? Where do they happen? What do they usually entail? So Driftbacks are a specific form of pushbacks at sea that began occurring regularly like you mentioned in the early 2020 onwards. And the word Driftbacks is kind of a term coined by Stefano Slyvidis from forensic architecture just to describe pushbacks that rely on life saving equipment so that inflatable life rafts actually carry out the pushbacks. So in these incidents, it's usually Greek authorities, most often the Atlantic Coast Guard who remove asylum seekers who have entered Greek territory or territorial waters and then force them back to sea. But the way in which they do so is particularly egregious and also kind of something that we hadn't really seen before in other contexts exactly. So people are taken aboard onto Greek Coast Guard vessels where they have reported being beaten, their belongings confiscated and then they're forced into these life rafts that are designed for rescue at sea and left to Drift, usually until the Turkish Coast Guard finds them and rescues them. But this is not like something coordinated, it's just kind of down to chance. And they often take place at night as well, like I've received calls from people in the middle of the night when they're stranded on these rafts, they're trying to find somebody to help them make a distress call. So they're really, really life threatening as well as violent in so many different ways. But beyond the kind of expulsion itself, they're often preceded by informal detention, so denial of access to asylum procedures and people being held in different informal sites. And many of the people that I've interviewed about this, like victims of this practice have described how they were tricked basically into coming into the custody of the Greek authorities. They thought that the authorities were going to facilitate their access to protection. Sometimes they told them things like that they were going to be taken for a COVID test somewhere and that's why they needed to board a ship only then to find themselves forced back to sea under these really dangerous conditions. And crucially, these operations leave no trace or official record because when people arrive, if they're pushed back then there'll be no official record of their arrival from the authorities. So the erasure is kind of part of the violence itself, you know. And we're really so much reliant on the documentation of different activists and of asylum seekers themselves who actually often, especially now, because asylum seekers have come to kind of to know the pushbacks are so systematic. They tried to safeguard themselves against them, so there's different groups like A.G. and Vote Report, a consolidated rescue group, different kind of activist groups who receive messages and distress calls from asylum seekers in real time and do their best to kind of publicize what's happening. And they've also faced a lot of smear campaigns and even criminalization as a result of that kind of work that they're involved in. Yeah, I've read as well that Greece has been criminalizing a lot of NGOs and journalists that are either reporting on these incidents or trying to assist migrants in asylum seekers. Yeah, because like access to the sites where they happen is blocked. Yeah, there's no, there's no longer any civilian search and rescue actor even in the A.G. and or kind of official human rights monitor. Which obviously plays into the hands of Greece and trying to hide these operations. So obviously you mentioned the Hellenic Coast Guard being the main actor conducting these explosions. In Europe we have also the European border and Coast Guard agents. Exactly. Is Frontex involved in these? Does it have to do anything with this kind of procedures? Because you would think that Frontex would be overseeing somehow these areas. Yeah, that's kind of what would be you'd expect. So Frontex is active in the A.G. and C in the context of joint operation presiding. So they cooperate with the Hellenic Coast Guard. And you know, if you look at the way that Frontex describes its role, it's all about balancing border security with upholding fundamental rights. And they talk a lot about rescue at C and that the dangers that people face. But what so many different reports have shown at this point is that Frontex has been really instrumental to this systematic pushback policy basically. So while there's maybe less evidence of Frontex's direct example in actually physically carrying out the pushbacks, there's quite a lot of evidence that shows the ways in which Frontex is very much complicit in the pushbacks themselves. So I can just talk a little bit about the different ways. So one way that we see their complicity is through the actual kind of structure of their operations in the A.G. And so their Modus operandi basically since early 2020, they've their Modus operandi has been defined by something that the border guards call the early detection tactic. So basically Frontex assets that could be surveillance equipment or it could be patrol vessels. They basically spot a migrant boat that would be carrying asylum seekers. And then they alert the Greek authorities who come on the scene. And then Frontex leaves the scene basically is then no longer on scene when the Greek authorities actually carry out the pushback themselves. So they facilitate the interception, but then they are not present to actually observe the violations. And there's been different documents which have actually shown that this is a deliberate decision to be a way to avoid witnessing any kind of fundamental rights violations. Then another way that they've been involved is through distorting the records of pushbacks as well. So there's an internal database called Jora where incidents are basically pushback incidents have been logged as prevention of departure. So it's this kind of bureaucratic label that's used to distort the facts and try to create an impression that people haven't actually arrived in Greece and been pushed back, but that they actually were just trying to enter and you know, where we're deterred through legal nonviolent means. So it's a complete distortion, but that's what they've been involved in. An agency that should be concerned withholding the rights of asylum seekers and ensuring certain rescue facilitates these practices where asylum seekers and migrants are arriving on and both for instance are deliberately being put into danger instead of rescuing them. Yeah, there's been times where front access played a more benign role in Greece than it does currently. But if you look at the kind of you know reason behind the agency and what it's really about, it is very much about maintaining kind of fortress Europe style policies. So I think it's it's kind of ultimately sadly unsurprising that the agency is involved in this kind of practice. You've mentioned that there's a variety of human rights violations that can be involved in these practices including obviously the summary explosions of migrants in human intergrading treatment, but also the arbitrary detention, which some scholars have very good kind of amount to and forces appearance even considering that migrants are held in Komani Kato and so on and so forth. I mean Drifak's create the risk of the same kinds of violations that pushbacks in general do so that would be of course the violation of the principle of non-reformal they represent a form of collective expulsion, risks to life, torture different forms of treatment, like you mentioned detention. What our the kind of litigation that I've been involved in as well as legal advocacy has tried to really emphasize pushbacks not only as a violation of the principle of non-reformal to kind of try and not think about this just as a violation of the rights of refugees but kind of broaden that out. So to frame these pushbacks as acts of violence that violate the right to life and the prohibition of torture so basically to frame them as a form of life threatening torture and the purpose of that is of course to kind of trying to challenge the normalization of border violence because there's kind of a maybe a limited imagination of what torture is. And people's imagination and because there's just so much demonization of migrants across the world then I think it's really important to to remind people you know because this is about so much more than just the judicial proceedings but to remind people just about the scale of this kind of violence you know. But yeah there's also really interesting scholarship and legal advocacy that has sought to frame these acts as enforced disappearance and I think that's really powerful really powerful framing because really by their very nature these are acts which really place people outside of the protection of the law. And we see that even in the ways in which the legal authorities have responded to legal challenges that have been brought where they the starting point is usually to say this never happened people were never there and just the kind of powerlessness that that results and I think is yeah I think enforced disappearances is kind of a category that we should try to mobilize more to challenge these practices. Yeah, no, that's definitely interesting to give it a different framing in the sense that it's not it's not only now and yeah a violation of all right asylum but it is violence and that's right in the right life and many other very core human rights. There's an interesting article by H. Marman Amanda Brown and Valentina Azarova framing and these pushbacks as enforced disappearance. Yeah, so in your article mentioned earlier you also mentioned that during driftbacks equipment designated to save people's lives at sea so these life rafts have been repurposed to facilitate the explosions of persons in need of protection meaning that infrastructure of protection has come to function as an infrastructure of border violence. What is actually do you mean by that and what does this tell us about European migration management in general. So what we mean by that is that driftbacks because they rely on life saving equipment life rafts which are actually states are required to possess in order to fulfill their obligations under the international law of the sea. So driftbacks rely on that equipment to actually carry out the expulsions to carry out these really gross human rights violations. So we understand these practices as being basically weaponization of rescue equipment and I think that this weaponization of rescue equipment is really revealing of the kind of deep deep flaws underpinning immigration management and really exposes the kind of fallacy of a lot of the foundational myths of migration management. So just to kind of clarify what I mean by migration management this is the term that you officials used to describe their kind of approach to migration policy but it's much broader than the EU. The dominant approach to migration policy since around the 90s I would say and it's very much also associated with the international organization for migration so I am. Migration management presents itself as a kind of like rationalized civilized approach to border migration policy and is often presented as the kind of solution to the crisis that's associated with unauthorized migration and at the heart of this is a narrative that basically migration management can strike a balance between protecting borders and protecting fundamental rights and through this kind of neutral or ostensibly neutral approach. It can be a win-win for all parties so for migrants for states and it also often relies really heavily on private corporations as well to be part of the implementation of migration policy. So if we look at Greece Greece has been a real testing ground for the EU project of migration management and we've seen this not only through things like the hotspot camps and different externalization policies but the EU has provided huge amounts of funding to Greece. So the risk of the EU is to be a host state for asylum seekers to process asylum seekers etc. So the rescue equipment is one example of something that was largely funded by the EU so of course Greece would have that equipment anyways but lots of funding is actually provided to Greece to fulfill its obligations under the law of the sea especially after 2015 when there was huge numbers of people who were dying and see. So we see this kind of rescue equipment getting used to carry out complete opposite purpose. So I think it shows really that if the policy is overall kind of oriented towards deterrence you know you can put as much money into enhancing human rights protections and ultimately those protections at least to some extent are bound just to become weaponized really so. It really exposes the limits of that. Yeah it's a really ironic as almost the wrong word for it but I think it's just like a really stark visual example of that because there's lots of other instances where we see human rights and human rights protections and even humanitarian infrastructures getting appropriated by authorities for border violence and this is just just kind of like a really strong example of that. Now let's turn to a little bit more different topics so a bit more than a year ago in June 2024 you actually presented in a case challenging Greece this practice of Driftbacks before the European Court of Human Rights in the case of G.I.J. Greece which concerns the abduction and summary expulsion of G.I.J. a 15 year old at the time 15 year old Afghan National from the Greek Ireland of Samus in 2020. Can you tell us what was this case about exactly what happened to G.I.J in 2020 and what were your claims or arguments in this case challenging this expulsion? So yeah as you mentioned the case of G.I.J. concerns a at the time 15 year old Afghan refugee who challenged the Driftback that he was subjected to at the hands of the Greek authorities so in September 2020 he was abducted from a refugee camp on the island of Samus and forced to expel to Turkey through a Driftback. So G.I.J arrived on the island of Samus on the 8th of September in a group of around 18 asylum seekers and he and one other member of the group who was also a teenager on a company minor they left the area where they first arrived and they went on foot to the reception center of F.E. they took pictures on the way and they stayed the night in the refugee camp and in the next morning they presented themselves the authorities to try and seek asylum then they also met with an Afghan community representative who was volunteering with UNHCR who also acted as a translator at some stage between the boys and the authorities. So they made it really clear that they were minors that they wanted to apply for asylum but instead of being given access to apply for asylum they were taken secretly by the authorities out of the camp they were told that they were going to be put in quarantine for a few weeks and they were brought to the port they were boarded onto a linn at Coast Guard vessel and they were taken out to sea and then forced into a small inflatable raft so it was just the applicant G.I.J. and his companion who was with the refugee camp. They were eventually picked up by the Turkish authorities and they were basically left institute without any access to protection there. So G.I.J. has complained basically seeks to hold Greece accountable for the violations that he suffered and also to challenge the kind of broader policy that this incident is part of. So the legal argument argued that this expulsion violated the principle of non-reformant as well like not only because he was returned to Turkey it also kind of was a risk of change of the government to Afghanistan from Turkey as well but beyond that he argued that the way in which he was expelled was a life threatening form of torture essentially that also denied him access to an effective remedy. This was the first case at the agreement court human rights that examined this systematic driftback practice that's been happening in Greece since 2020. What were the main challenges during the proceedings or the hearings because you mentioned in the beginning that part of part and parcel of this practice is that first of all it is covered secret operations that happen at night. The authorities do not document these operations there's no decisions of expulsion or return and secondly Greece has consistently denied that it is engaging in these practices in these bushbacks or driftbacks. So I can imagine that being an issue in terms of providing evidence from the side of the applicants. Yeah so there's like aspects of the kind of way in which pushbacks are carried out which makes it really difficult for victims to challenge just to maybe clarify a little bit about the evidence. So when G.R.J arrived to Samos a member of the group that he arrived with was in contact with a G.N. boat report this Norwegian NGO that I mentioned and the group sent GPS locations to the NGO at a show where they had arrived. They also sent videos and pictures to and there's a video where G.R.J is visible you can see him in the place where they landed. A.G.N. boat report then contacted the Samos Port Authority to try and get assistance for the group. So that's the kind of first form of evidence. I mentioned that the two teenagers took pictures on their way to the refugee camp but as we know a really core aspect of pushbacks is that authorities confiscate a salam seekers phones. So G.R.J didn't have access to the picture that was taken of him on the island at that point in time. This is something that the court really focused on and the government really focused on as well. There was also the testimony from the Afghan community representative that they met and the Greek government really sought to discredit this by after we had already submitted a witness statement. So years later the Greek government found him tracked him down in England and interviewed him and in the interview according to the government this community representative or former community representative said that he couldn't tell for sure if it was the same person. Of course, somebody has been interviewed by authorities. They might want to be careful and they're worried because so many so much time had passed on like four years had passed. This was also used to discredit. So basically yeah in terms of the challenges is the time frame that this takes you know for somebody who's especially for a teenager who's been subject to like such extreme violations to have to wait this many years for even a chance of some kind of legal justice is really really challenging. But then yeah the evidence the lack of the fact that the the Greek government's position has been one of blanket denial creates so many so many articles for people trying to challenge these practices. And we saw this also unfold in the hearing itself which focused so much on questions of evidence and the Greek government sought to discredit the photos and videos that the applicant did submit by saying that they didn't have any metadata. So the kind of like information that a file has that shows like the time and the maybe you could get the location from that. Even though it's really well known that if you send a photo or a video through WhatsApp or a different messaging platform that's all deleted. So because his phone was confiscated nothing that he was able to submit had that original information. But instead what he did have was a report from you know really in depth analysis from forensic architecture who had analyzed all of the footage and verified it through alternative means. Yeah I know forensic architecture does a great job at finding all the tiny pieces of information and data and geolocating photos and connecting the different pieces of evidence in order to paint the picture and show that what actually happened in January 2025 the court finally pronounced this judgment in this case as well as in a similar or related case ARE first increase in that case the court actually concluded so that was a case also on a relating to a pushback concluded that Greece had violated articles 313 and 5 of the CTO in conducting this pushback in contrast in G.A.J. While the court and acknowledged for the first time that there was a systematic or it was very likely that there was a systematic practice of pushbacks from Greece to Turkey. It did in the end dismiss the case of to your J on an individual basis stating or arguing that he had proven his victim status to the necessary standard of proof. So this is all a bit complex so we'll try to figure it out a little bit can you briefly summarize maybe first considering the other case that I just mentioned ARE what was that case about just roughly and then what the different conclusions were in these cases because they were very similar in essence but had two different outcomes. Yeah so the hearing that took place in June 2024 was the first time that Greece's policy of pushbacks was actually heard by the court and unusually maybe the court joined two cases together for the hearing so one of them was ARE versus Greece which involved a woman who was fleeing Turkey and she was fleeing persecution linked to her alleged association with the Gulan movement and not mistaken. So she entered Greece through the Evers River and this is something I mentioned earlier she seemed to almost anticipate being pushed back so she really meticulously documented her arrival in Greece and had a really unusually robust body of evidence to submit to the court. So she had like real time GPS location tracking her presence in Greece that was linked to her specifically. She had photographic evidence of her location also showed you know really specific locations in Greece and she also I believe had contact with lawyers in Greece upon arrival so there's this kind of documented record of her presence that was quite unusual and also there was subsequent official documentation from Turkish judicial authorities after the pushback that acknowledged her force returned from Greece and that was also kind of seems to have been given quite a lot of weight. By the court but in that case still despite that kind of evidence the Greek government still denied that it happened in the same way that they did with GRJ and her you know because she had tried I believe to initiate domestic proceedings and I think that those were dismissed due to lack of evidence apparently but the court found ARE's narrative to be credible and corroborated by the evidence that she submitted so the court determined that Greece had violated a number of different articles of the convention so article 3 5 13. This was a really celebrated ruling for many reasons not least because it acknowledges the systematic practice but also because they found violations or at least some of the violations that this applicant alleged but myself and many other critics would be really concerned about the standard that this or like the precedent that this might set because this particular pushback victim is not the average pushback victim you know somebody who seems to have been quite well prepared and able to document what would happen to her and that you know access to challenge it in a way that's just not available to the average person so there's some concerns about that. The court somehow created something like the perfect victim then in this case and there was you said created a really high standard for other applicants to meet to provide this amount of evidence that is as you said very very unusual and really almost impossible to reach I would say and shows that she knew what was expecting her in Greece and took these precautions but it was certainly also a measure of luck that she she was able to document these things. And then it's like almost putting the responsibility on asylum seekers to not only like avoid getting pushed back which they shouldn't have to be exposed to and then to also be able to to show evidence of it to document their human rights violation. So the decision in G.I.J. as you mentioned has been very much criticized by many different scholars especially in regards to the evidentiary approach adopted in in both cases actually area and the G.I.J. So we said that it puts the standard of proof for the applicant it sets a really high threshold for that so any other comments or criticism he would have in relation to the judgment. Yeah mostly on that kind of following a similar vein but I think just to be really clear about the kind of rationale of the reasoning in G.I.J. So in G.I.J. the court's justification for dismissing the case was by pointing to these supposed inconsistencies or contradictions in the applicant's statement and also the evidence that he submitted was deemed to be kind of insufficient to prove that it was him. And basically seems to have at least to some extent well they've definitely explicitly recognized the systematic practice. They seem convinced I would say that the push back you know that G.I.J. is talking about took place but they're saying that what he brought forward was not enough to show that he was part of it. This is really paradoxical because you're acknowledging that this policy is taking place and you know that this is a policy where evidence like the authorities will deliberately try to prevent any evidence from being collected or preserved you know that people's mobile phones are taken. So how can they possibly prove the link so they said that you need to not only show you know that they're your present in Greece and that you subsequently are present in Turkey but you need to actually show what happened in between. Which is precisely the problem with push backs so it really creates such a dilemma for people. In terms of my kind of criticism of the decision and the reasoning yeah I think a lot of what I've been critical of it relates also to the questions of the threshold for evidence. So many others have also talked about kind of the conflation of the different standards of proof so because push backs are really akin to other kinds of state crimes like enforced disappearance you know where there's this huge power imbalance between the state authorities and the victim. According to the case law of the ECHR there should be a reversal of the burden of proof from the applicant to the state so instead of it being on GOJ it should be on the Greek government basically. Yeah because then usually would be on the applicant to prove the human rights violation that they're alleging or then it would shift to Greece to disprove that this exactly. So provided that the applicant can bring forward what they referred to as a like prima facie or would they can provide prima facie evidence then it would switch the state to basically rebut that which didn't really happen in this case. So like what I observed is that the court did kind of restate those same kind of principles of its case law but in practice it didn't really meaningfully integrate that into the way in which it assessed the evidence. So it basically said they were the court said that it was looking for just prima facie evidence but what it actually defined as prima facie evidence in my view goes way beyond that. So they were really looking for not only a really detailed coherent statement which I would argue GOJ absolutely submitted but they were also looking for the kind of evidence that's simply not available to an asylum seeker. Which actually is to another point that has been criticised as well by other scholars that the court relied heavily on what it calls objective or direct evidence so evidence emanating from the respondent state or from other states. Yeah. Which is again ironic because obviously this practice of Driftbacks is part of it is that the state does not provide any evidence. It denies as you said in the case it blankly denied that these practices have even are even occurring in general and despite all these NGOs and you and you and human rights organizations as well and reporting them for years. And that should also as some scholars have argued the fact that Greece has been denying that these practices are happening and then the court subsequently found no actually there is a systematic practice of pushbacks. This should impact on the credibility of the government in denying these cases because obviously well it lied and quite frankly said but the court doesn't seem to have taken that really into account in making its decision. Absolutely. There seems to be a real double standard here. So like you mentioned the Greek government consistently denied it said that he was never there to begin with which we know is not true. And they also they didn't provide any kind of compelling rebuttal and alternative explanations to all that they provided were these records that referred to the detection of two individuals on a boat on the 9th of September so they basically tried to do the same thing that I was saying front text does they tried to basically make GRJ's pushback look like a thwarted entry attempted entry. So they tried to like basically make the pushback look like they were just trying to enter Greece for the first time which is completely you know implausible like why would two teenagers be trying to cross the a GN without a motor without any or is by themselves you know. So on the one hand you have the government taking that kind of an approach and there being quite a lot of difference I would say from the court to the government and then there was a lot of doubt cast on the credibility of the applicant then. So there's different references in the in the decision to apparent inconsistencies and the kinds of things that they refer to as inconsistencies are really not so so they talk about that there's a kind of discrepancy between the initials of the applicants that were reported on the Turkish and on the Greek side. I mean I don't even know if that's the case I don't have any like I'm not sure but if that was the case I can think of so many different reasons why somebody might you know it could be a technical error misrecording but also we know that there's a really clear risk of refuel month to Afghanistan from Turkey so yeah there's lots of extations for that but also the there was different accounts that all corroborated the applicants account with maybe minor I wouldn't even say inconsistencies just to say. Consistencies just minor kind of differences in the ways that details were described and those reuse to try and say look different accounts but they all it has to be wrong yeah it was the same event which actually one of the judges pointed out during the hearing. The government also referred to the applicants asylum interview apparently in which they said that he had said that he had never entered Greece before but actually the transcript says what they said have you ever been to Greece before he said. I quote no every time I tried to enter the authorities pushed me back. Yeah it seemed that the court has really end the state as well relied on these what they call inconsistencies but what is really just irrelevant small details that are just natural especially in these kind of situations. And I don't think that the materials submitted in ARE were scrutinized to the same extent you know. It's kind of this like double bind that you see because I remember at the time when we were submitting this case it was one of a few others that I was involved in and there was quite a lot of like at least conversations about the fact that you know there is this quite restrictive kind of turn in the case law of the court at the moment when it comes to migration and you know we really need to make sure that people who were challenging push back cases also have a strong refugee profile and then basically trying to find this idea of a perfect victim. That was just like part of the kind of conversations about strategy. But then you see you have somebody who's a child who kind of embodies like you know what people associate as vulnerability in all of its kind of most essential forms and then that becomes a bit of a like double edge sword because that kind of gets used to dismiss the person's credibility I would say in many ways. The double standards and whatever is there I think so maybe one last question considering all this do you think push back cases before the court of human rights since the chance of success in the future or what do you think what are the options for you know push back victims that wanted to challenge these human rights violations. I think that's a question now you know from a strategic point of view is like how can we actually mitigate these challenges or these obstacles that the recent case law creates. I think there's maybe limited chance for success now we've also seen with recent cases like SS and others versus Italy where the court basically that was after I think nine years they said that there was no jurisdiction. So basically you see states constantly trying to come up with different creative means to circumvent the human rights violations usually through externalization and it seems like the European Court of Human Rights isn't really a kind of form that can provide any kind of justice for victims of these policies. I think the real question is how can we think maybe beyond beyond the European Court well potentially still trying to engage it if possible but how can we think beyond that because it's not only a problem of the European Court of Human Rights but really of international law. International law is centered around the right of states to control their borders and that really undermines any kind of idea or like possibility of migration justice for people because it's primarily people who are racialized, who are excluded from places where they want to travel to to seek safety. And the right for a state to control its borders is always kind of comes before the right for people to move everything else basically we don't have any kind of unqualified right to move you always have to prove that you're exceptional in some way exceptionally vulnerable in order to access protection and I think that's like the core issue here. So that's a nice point to conclude because I guess it is eventually leads back to what you were saying that our whole system but also other systems are just centered around okay we only accept very very few. And I can set fit into these very specific narrow categories that we then deemed to be allowed to enter the EU for instance because they are a need of protection but then many other cases where people have very valid reasons for moving we just say well no. So yeah that's something to think about definitely and to work on so to bring this to this episode to an end I refer to a few of the articles and submissions you went involved in so I will all link these in the. And yeah that's that leaves me at the end and I just want to thank you for speaking to me today about this topic and I'm super interesting and I'm sure we all learned a lot about it yeah thank you so much. You have been listening to the Human Rights Podcast the podcast is produced by staff and students of the Irish Centre for Human Rights at the University of Galway and supported by the University Centre for Excellence, Teaching and Learning. This episode was produced by Osandra Kau in Corporation with Kel Studios.