Sophia Papadima 23 • 12 • 2022

Safi v. Greece: European Court of Human Rights finds Greece to be in violation of Articles 2 and 3 of the ECHR

Sophia Papadima
Safi v. Greece: European Court of Human Rights finds Greece to be in violation of Articles 2 and 3 of the ECHR
23 • 12 • 2022

In the case of Safi and others v. Greece (appeal no. 5418/15), the European Court of Human Rights (ECtHR) found Greece to be in violation of Articles 2 (rights to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR. The appeal concerned the treatment of third-country nationals during their attempt to enter the country by sea and apply for asylum. The case represents a landmark as it is the country’s first conviction by the European Courts regarding allegations of refoulement, highlighting many of the problematic aspects of the way asylum seekers are treated, as well as the way in which allegations of refoulement are handled by the domestic authorities.

Article 2 of the European Convention on Human Rights (ECHR) establishes the right of every person to be protected from unlawful killing. Article 3 recognizes the right not to be subjected to torture or to inhuman or degrading treatment. These rights are considered to consist of two aspects, the substantive and the procedural. States have the obligation not to allow any action that violates these rights, but also the obligation to fully investigate any allegations of the violation of these rights.  

On 07-07-2022,  the decision of the European Court of Human Rights  (hereafter ECtHR)  was issued in the case of Safi and others v. Greece (appeal no. 5418/15)  judging that Greece had violated articles 2 and 3 of the ECHR in this case. See the decision as posted in the HUDOC database here and the ECtHR press release here.

The appeal was lodged by a group of 16 applicants, consisting of 13 Afghan nationals, two Syrian nationals and one Palestinian national. It concerned the sinking, on 20 January 2014, of a fishing vessel carrying 27 foreign nationals in the Aegean Sea, off the island of Farmakonisi. The applicants were on board the vessel, the sinking of which resulted in the death of 11 persons, which included their relatives. According to the applicants, a coastguard vessel was traveling at too high a speed in order to push them towards Turkish waters, resulting in the capsizing of the vessel. Finally, the applicants complained that the treatment of the shipwreck survivors on their arrival in Farmakonisi constituted inhuman and degrading treatment, as the survivors were strip searched in a public space and forced to assume humiliating positions. 

With regard to the alleged violation of the procedural part of article 2 the court, recalling that for an investigation to be “effective”, it must be characterized by substantial independence (rather than simply institutional or hierarchical independence), found that this had not been the case. 

With regard to the alleged violation of the substantive part of Article 2, the EDPS found that the Greek authorities had failed to do what could reasonably be expected of them to provide the applicants and their relatives with the level of protection required by Article 2 of the Convention.

Finally, as regards the alleged violation of the substantive part of Article 3 of the ECHR, the Court, taking into account the applicants’ vulnerability at the time due to the traumatic event they had just experienced, held that the Government had not explained why the strip search was necessary to ensure public order and security. Consequently, it caused the applicants’ feelings of inferiority and anxiety, resulting in a degree of humiliation which amounts to degrading treatment.

Where is the problem with the rule of law?

Respect for fundamental rights is one of the key components of a state that is governed by the rule of law. The fundamental rights that every citizen should enjoy are enshrined in the European Convention on Human Rights. It is a primary and indisputable obligation of the state to respect these rights.

In this particular case, however, the European Court of Human Rights ruled that there was a violation of Articles 2 and 3 of the ECHR.

In this case the courts found that these rights had not been respected because the investigation conducted by the domestic authorities was not sufficiently effective nor independent.

In addition, it was found that the authorities did not take the necessary actions to safeguard the life and physical integrity of the applicants and their relatives, while the physical search they were forced to undergo upon their arrival in Greek territory and the way it was conducted was neither necessary nor proportionate with the circumstances.

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