FIRST SECTION
CASE OF SAFI AND OTHERS v. GREECE
(Application no. 5418/15)
 
JUDGMENT
Art 2 (procedural) • Boat sinking fatal to some refugees on board not effectively investigated by national authorities • No examination of content of refugees’ statements before inclusion in case file despite very serious shortcomings • Insufficient involvement of applicants in proceedings • Failure to pursue other obvious lines of inquiry
Art 2 (substantive) • Positive obligations • Life • Specific oversights and delays by national authorities in conducting and organising rescue of refugees • Coastguards’ obligation of means not of result to rescue anyone in danger at sea • Difficult and speedy decisions needing to be made by the captain and crew of State vessels, generally at captain’s discretion, when rescuing people at sea, prompted by overriding endeavour to secure right to life of persons in danger
Art 3 (substantive) • Degrading treatment • Refugees brought from capsized boat to Greek island body-searched after being ordered by law enforcement personnel to undress together as a group in front of at least thirteen people

 
STRASBOURG
7 July 2022
FINAL
 
07/10/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Safi and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Erik Wennerström,
 Raffaele Sabato,
 Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having deliberated in private on 5 November 2019 and 14 June 2022,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 5418/15) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Afghan nationals, two Syrian nationals and one Palestinian national (“the applicants”), whose details are set out in the appendix, on 21 January 2015. 2. The applicants were represented by Ms M. Papamina, Mr K. Tsitselikis, Ms I.-M. Tzeferakou, Ms K. Papapantoleon, Ms I. Kourtovik, Mr V. Papadopoulos, Ms E. Spathana, Ms V. Tsipoura and Mr P. Christopoulos, lawyers practising in Athens and Thessaloniki. By a letter dated 3 April 2016, Mr V. Papadopoulos informed the Court that he no longer represented the applicants. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms S. Charitaki, Legal Counsellor at the State Legal Council, and Ms A. Magrippi, Legal Representative at the State Legal Council. 3. The applicants complained, in particular, of a violation of Articles 2, 3 and 13 of the Convention. 4. The Government were given notice of the application on 22 February 2016. INTRODUCTION
5. The application concerns the sinking of a boat in the morning of 20 January 2014 in the Aegean Sea, off the island of Farmakonisi, causing the death of eleven people. THE FACTS
CIRCUMSTANCES OF THE CASE
6. In view of the number of applicants, the Court will for practical reasons refer to them by the number they have been attributed in the appendix to the present judgment, while taking into account each individual’s specific circumstances. 7. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case
8. On 20 January 2014 a fishing boat carrying twenty-seven foreign nationals sank in the Aegean Sea, off the island of Farmakonisi. The incident caused the death of some of the applicants’ family members, namely the wife and four children (Nazparwar Esakhil, Noman Safi, Mohammad Safi, Hanifa Safi and Malalai Safi) of the applicant designated by number 1 in the appendix, the wife and three children (Maleka Azimi, Narges Ahmadi, Mohebal Irahman Ahmadi and Muslim Ahmadi) of the applicant designated by number 2 in the appendix – applicant number 2’s wife and three children also being the mother, sister and two brothers of the applicants designated by numbers 4 and 5 – and the wife and child (Elaha Azizi and Behzad Azizi) of the applicant designated by number 7 in the appendix. The events of 20 January 2014The applicants’ version

9. The applicants described the events of 20 January 2014 as follows. The boat had sunk because a coastguard vessel had attempted to tow it back towards the Turkish coast at very high speed. The coastguards had made significant omissions during the rescue operation, which had contributed to the death of the first three applicants’ family members. 10. In the evening of 19 January 2014 the applicants and their family members boarded a Turkish fishing boat, the Conzuru, on the Turkish coast with the aim of sailing to the Greek coast. The fishing boat entered Greek territorial waters early in the morning of 20 January 2014 after travelling for one hour and thirty minutes and was sailing very close to the shore. The women and children, including the applicant designated by number 10 in the appendix and her son, who was a minor at the relevant time (the applicant designated by number 15 in the appendix), together with the applicant designated by number 2 in the appendix, were in the boat’s cabin. The other applicants were on the deck. 11. The boat’s engine then stopped working and the vessel began to drift. According to the meteorological service and the institute of oceanography, winds were blowing from the south-east at force four to five on the Beaufort scale. Waves were also coming from the south-east, reaching heights of 0.7 metres on average and up to 1.2 metres. 12. The coastguard patrol vessel (λιμενικό καταδιωκτικό σκάφος) PLS 136 (“the PLS 136”), which had a crew of four, arrived at the scene and approached the fishing boat as part of the joint European operation Poseidon 2014, run by the European Border and Coast Guard Agency (Frontex). The coastguards asked the people on board the fishing boat to return to Turkey and fired a shot into the air. The PLS 136 performed identification manoeuvres (αναγνωριστικές κινήσεις) around the fishing boat before pulling alongside it (το πλεύρισε). Two coastguards boarded the boat and, weapons in hand, ordered the individuals on the boat to sit on the deck. At that moment, and for the remainder of the operation, those individuals asked for help by shouting to the coastguards that there were women and children on board, showing them two children (the applicant designated by number 15 in the appendix and one of the children of the applicant designated by number 1 in the appendix, who ultimately died) who were in the boat’s cabin, in order to make the crew of the coastguard vessel understand that there were genuinely women and children on board. One of the coastguards tied a 10-metre rope to a fitting on the fishing boat’s bow (πρωραία δέστρα). The PLS 136 then made two attempts to tow the fishing boat towards the Turkish coast, away from the shore of the island of Farmakonisi. During both attempts the PLS 136 was travelling at high speed, causing the bow of the fishing boat to rise up and water to flow in over the sides of the deck and at the level of the stern (η εισροή στο πρυμναίο μέρος του καταστρώματος αυτού υδάτων από τις πλευρές). There had been no water in the boat before the towing began. 13. During the first towing attempt, which lasted at least fifteen minutes, the fitting on the fishing boat’s bow being used to secure the rope was torn off, owing to (a) the short length of the tow rope; (b) the abrupt start and sudden changes in speed while towing; (c) poor control over the engine speed and the water spray from the PLS 136 as it attempted to maintain a lower towing speed; and (d) the fact that the tow rope was not horizontal, which caused it to pull awkwardly (σύνθετη καταπόνηση της δέστρας). After the fishing boat’s bow fitting had been torn off, the PLS 136 once again drew near to the boat in question. The two coastguards reboarded the PLS 136. Remaining there, they threw the same 10-metre rope to the applicant designated by number 14 in the appendix and ordered him to attach it to the fishing boat, specifically to the bow bulwark (πρωραία ρέλια). The applicant designated by number 14 in the appendix did as ordered. 14. The applicants asked for help, once again showing the coastguards the applicant designated by number 8 in the appendix, who at the relevant time was only fifteen months old. The second towing attempt began, at high speed and involving dangerous manoeuvres. It did not last as long as the first attempt. The fishing boat tilted backwards because of how it was being towed, the short length of the rope and the fact that the bow fitting had been torn off. The boat continued to take on water, which the applicants attempted to bail out using a small container. The applicants then shouted for help so that the PLS 136 would stop and once again showed the coastguards the applicant designated by number 8 in the appendix, begging them to take him on board their vessel. The PLS 136 stopped and drew near to the fishing boat, which was still attached to the coastguard vessel by the tow rope and was tilting backwards. The applicants asked for help several times. Some exited the cabin, namely the applicant designated by number 10 in the appendix with her son (the applicant designated by number 15), the applicant designated by number 2 in the appendix, his wife, M.A., and their child, A.I.M. One of the coastguards then cut the tow rope. The fishing boat immediately capsized. The individuals who had been outside the cabin went overboard and were at risk of drowning while the others – that is, the women and children – were trapped inside the cabin. 15. The fishing boat had taken on water because of how it had been towed and in particular because of the short length of the rope, the lifting of the bow, the coastguard vessel’s wake and the fact that the bow fitting had been torn off. The water flooding into the boat had triggered a free-surface effect (ελεύθερη επιφάνεια) both on the deck and in the hull and cabin. Combined with the wave conditions and the boat’s high centre of gravity (owing to the fact that all its occupants were on the deck and to the upward pull of the tow rope), these circumstances had inevitably led the boat to capsize. 16. Referring to their statements to the public prosecutor at the Piraeus Naval Court (“the Naval Court”) and to the investigating judge at the Kos Criminal Court of First Instance, the applicants indicated the following. The crew of the PLS 136 did not throw them lifejackets or other life-saving equipment and took no action to rescue the fishing boat’s occupants. In some cases, they actually prevented people who had fallen overboard from climbing on board the PLS 136. Despite the difficulties, the applicants managed to board the coastguard vessel while the fishing boat’s other occupants (the family members of the applicants designated by numbers 1, 2, 4, 5 and 7 in the appendix) drowned. In particular, the wife and child of the applicant designated by number 2 in the appendix (respectively the mother and brother of the applicants designated by numbers 4 and 5 in the appendix) drowned before their eyes. The applicant designated by number 14 in the appendix, who was on board the coastguard vessel at the relevant time, dived into the water to try to rescue those drowning, but was unsuccessful. 17. On 20 January 2014 at 2.13 a.m. the crew of the PLS 136 telephoned the national search and rescue coordination centre (Εθνικό Κέντρο Συντονισμού Έρευνας και Διάσωσης – “the national coordination centre”) to inform them of the following situation: “at location ... spotted a half-submerged A/K [the fishing boat] with around thirty passengers, fifteen people have been rescued and [we are] recovering the remaining [individuals], some of whom [are] trapped inside the boat”. 18. According to the extract of the event log, the national coordination centre was only informed of the operation after the boat had sunk and the survivors had been recovered. There were no electronic recordings to provide objective information on the operation. The location indicated by the crew of the PLS 136 to the national coordination centre as where the boat had sunk was not corroborated by any electronic recordings or radar data. 19. At 2.16 a.m. the PLS 136 communicated the following information to the national coordination centre: “... serious problem in the engine room (μηχανοστάσιο), possible fire, cannot enter the engine room and [there are] fifteen to sixteen rescued individuals on the deck. The A/K is submerged and there may be people trapped inside, but all the [individuals] found at the surface have been recovered. The PLS 136 cannot stay for safety reasons and is heading to Farmakonisi”. 20. At 2.21 a.m. nearby ships received the word to head immediately to the area where the boat had sunk. At 2.25 a.m. an international distress signal was sent out. A series of actions were then ordered to rescue the victims of the boat sinking. At 2.30 a.m. the PLS 136 berthed at the port of Farmakonisi with the survivors on board. 21. At 3.32 a.m., one hour after the sinking, the first ship arrived at the scene. At 3.50 a.m. the Greek authorities informed the Turkish national search and rescue coordination centre of the incident. At 8.12 a.m., six hours after the sinking, the Leros Port Authority sent the public prosecutor at the Kos Criminal Court of First Instance a report entitled “Rescue of sixteen illegal migrants and search operation to locate twelve missing people in the maritime region of the island of Farmakonisi”. The report mentioned that the fishing boat had been spotted by the PLS 136 at 1.25 a.m. 22. At 4.10 p.m. the PLS 136 issued the following statement: “Twelve people (nine children and three women) missing, none wearing lifejackets, the two lifebuoys have been deployed” (Appendix 25). 23. At 4.40 p.m. the applicants were transferred to the island of Leros. At 4.48 p.m. and 4.55 p.m. the Turkish national search and rescue coordination centre informed the Greek national coordination centre that a Turkish coastguard vessel had spotted and recovered the bodies of a boy and a woman. At 9.45 p.m. the Leros Maritime Authority sent the public prosecutor at the Kos Criminal Court of First Instance a “corrected version” of the report of 8.12 a.m. with some amendments. In particular, according to the 9.45 p.m. report, the fishing boat had been spotted not at 1.25 a.m. but at 2 a.m., it had been carrying an unknown number of individuals, the towing had begun at 2.10 a.m. and around 2.15 a.m. the boat’s occupants had moved around, two of them – a woman and a child – had fallen overboard and the boat had then sunk. That report provided the same coordinates for where the fishing boat had been located and where it had sunk. 24. Lastly, the applicants indicated that the shipping minister at the relevant time had given an interview to a journalist in October 2013, stating: “The first thing we do is to tell the Turkish authorities to come and find them and get them ... if they have not crossed the border or, in any event, to put them back on the Turkish side”. According to the applicants, he had also said that the coastguard had already arrested around 7,000 individuals and that “... we [had] prevented [a large number of migrants from reaching Greece]”. The Government’s version
25. The Government referred to the facts as described in judgment no. 19/2015 of the three-member Dodecanese Criminal Court of Appeal (see paragraph 58 below), order no. 18/2015 of the Chamber of the Naval Court (see paragraph 79 below), decision no. 263/2014 of the Naval Court prosecutor (see paragraph 69 below) and order no. 2153/2014 of the Piraeus Military Court prosecutor (see paragraph 83 below). 26. The Government described the events in issue as follows. 27. On 20 January 2014 between 1.40 a.m. and 1.45 a.m. N.B., a PLS 136 crew member, telephoned K.G., a class II captain who was responsible for “coordinating and managing illegal immigration incidents in the Aegean Sea” and worked in the coastguard’s maritime-border protection division, to inform him that the PLS 136 had sped off to identify and inspect a “suspicious target” detected by the Farmakonisi military base. On reaching the boat in question, 1.5 nautical miles from the Farmakonisi coast, the crew of the PLS 136 observed that it was a 9-metre-long engine-powered wooden fishing boat named Conzuru, equipped with a metal structure and a cabin and carrying twenty-seven migrants on board, including three women and nine children. 28. The number of individuals on board exceeded the maximum permitted capacity and the weather conditions were unfavourable (wind of force five on the Beaufort scale and heavy swell). The fishing boat was in a state of disrepair and unseaworthy as there was no life-saving equipment, no safety equipment and no navigation lights apart from the side lights. In view of this information, K.G. ordered N.B. to take the fishing boat and its occupants to safety at the port of Farmakonisi. 29. The PLS 136 then began to tow the fishing boat. Crew members O.M. and I.T. boarded the boat and attached a rope to a stable point on the bow. Using this rope, they began towing the boat at a low speed (around 4 nautical miles per hour) towards the north-east of the island of Farmakonisi in order to protect the vessels from the danger of the heavy swell. The fishing boat’s occupants began to panic because of the small capacity of their vessel and the strong waves, causing the boat to capsize. Its occupants then found themselves in the sea. 30. At 2.13 a.m. the crew of the PLS 136 reported the location of the half-submerged boat to the national coordination centre and informed it that there were around thirty individuals on board, fifteen of whom it said had already been rescued, and that the crew were in the process of recovering the remaining individuals, some of whom were thought to be trapped inside the cabin. 31. At 2.16 a.m. the captain of the PLS 136 again contacted the national coordination centre and reported that the fishing boat had sunk, probably with people trapped inside the cabin, that the PLS 136 had a serious problem in the engine room on account of smoke probably caused by a fire and that the crew could not enter the engine room because of the rescued individuals on the deck. The captain of the PLS 136 considered that, for safety reasons, they should head towards Farmakonisi as all the individuals found at the water’s surface had, he believed, been recovered. The PLS 136 recovered sixteen individuals. Those individuals said that twelve people were missing. 32. At 2.25 a.m. the national coordination centre sent a “Mayday Relay” distress call via coast radio station Olympia Radio so that ships sailing in the area were aware of the situation and could quickly make their way to the scene to assist the victims. It also informed the Turkish national search and rescue coordination centre so that search operations could be conducted simultaneously in Turkish waters. Search operations to locate the boat, any survivors or bodies continued under the coordination of the Greek national coordination centre until all reasonable hope of finding and rescuing survivors had passed. The national coordination centre then mobilised all rescue services available in the region, sending sea and air resources to the scene, namely a rescue boat (Ν/G 512) and a coastguard vessel (PLS 616), both belonging to the Leros Maritime Authority; a navy vessel; a coastguard vessel (PLS 613) belonging to the Kalymnos Maritime Authority; two Super Puma helicopters from Chios and Rhodes; and a coastguard helicopter. In particular, at 2.29 a.m. the national coordination centre requested the assistance of an air-force helicopter, which arrived at the scene at 3.52 a.m. At 2.45 a.m. it requested the use of a navy vessel. At 2.46 a.m. it dispatched the Kos Maritime Authority’s PLS 616 to the scene. The PLS 616 was the first to arrive at the scene, at 3.32 a.m. 33. The PLS 136 did not have an automatic identification system (AIS), which meant that the national coordination centre was unable to track its exact position on a map in real time. However, it is clear from the positions reported by the PLS 136’s captain to the national coordination centre at 2.13 a.m. and at 2.16 a.m., and the fact that the incident evolved into a search and rescue operation, that the PLS 136 was heading east, that is, towards Farmakonisi. The events of 20 January 2014 after the applicants’ arrival on FarmakonisiThe applicants’ version

34. The applicants presented the events of 20 January 2014, after their arrival on Farmakonisi, as follows. The applicants designated by numbers 1, 3, 4, 6, 7, 9 and 11 in the appendix were kicked and shoved by two coastguards. The survivors of the boat sinking (with the exception of the applicants designated by numbers 10, 14 and 15 in the appendix) were immediately taken to an open-air basketball court and strip-searched in front of the other survivors and a group of soldiers. They were asked to bend over and turn around while they were allegedly still naked. The applicants designated by numbers 10 and 14 in the appendix were body-searched by the coastguards in an enclosed area, without the respect they felt such a situation deserved. During their stay on Farmakonisi, the applicants had no contact with the outside world. The Government’s version
35. The Government described the events of 20 January 2014, after the applicants’ arrival on Farmakonisi, as follows. At 2.30 a.m. the applicants disembarked from the PLS 136 on Farmakonisi and were received by eight members of the Farmakonisi military-base personnel, who led them to that facility. There, the applicants, with the exception of those designated by numbers 10 and 15 in the appendix, were subjected to a body search and their personal belongings were registered (with the exception of the money they had with them). Each applicant underwent a preventive medical examination (a check for fever and any injuries along with a stethoscope examination) inside a shipping container. The applicants designated by numbers 10, 14 and 15 in the appendix were examined in the base’s medical office. During the examinations, K.A., a military doctor, did not observe any sign of ill-treatment. A coastguard special forces unit was also stationed on Farmakonisi. According to Sergeant E.C., K.P. from that team was the person who slapped the applicant designated by number 11 in the appendix when the applicants did not respond when asked who the fishing boat’s captain was. The number of slaps and the duration of the incident in issue, however, are unknown. None of the applicants raised the issue of the coastguards’ responsibility in their boat’s sinking. Facts not in dispute
36. At 3.30 p.m. the applicants were transferred to Leros. 37. On 20, 21 and 22 January 2014 they provided witness statements as part of an investigation (προανάκριση) launched by the Leros coastguard of its own motion into the causes of the accident. According to the Government, the applicant designated by number 14 was assigned an English-speaking interpreter because the other applicants had indicated that he understood English. For the other applicants, in the Government’s submissions, H.S. and R.R. – who had told the authorities that they were Afghan nationals – acted as interpreters because there were no others available on the island. The Government stated that the applicants had not told the coastguards that interpreters were needed and that the coastguards had not been in a position to realise that themselves. The applicants thus provided witness statements. The Government pointed out that the applicants had made no accusations in their statements against the coastguard or any other State body. They further asserted that the applicants had identified the applicant designated by number 11 in the appendix as the captain of the fishing boat. 38. On 21 January 2014 the applicants met with representatives of the United Nations High Commissioner for Refugees (UNHCR). The applicants stated that they had given them their version of the events. In a press release published on that same day, the UNHCR stated: “According to accounts from the survivors, the coastguard vessel towing their boat was heading towards the Turkish coast at high speed when the tragic accident took place in rough seas (εν μέσω θαλασσοταραχής). The same witnesses say the people were shouting for help, as there was a large number of children on board”. 39. On 22 January 2014 the decision ordering the applicants’ expulsion was suspended and the applicants were released. The Afghan applicants received documents informing them that they had to leave the country within thirty days. The applicants designated by numbers 9 and 16 in the appendix received documents informing them that they had to leave the country within six months. According to the applicants, their identity information in those documents was incorrect because of the lack of appropriate interpreting. The validity of those documents was subsequently extended in Athens. 40. On 23 January 2014 the applicants arrived in Piraeus and held a press conference to give their version of events. 41. On 25 January 2014 a heavy object was discovered at sea using a trawl net, but it sank before it could be recovered. According to the applicants, the location of the object was different from that given for their sunken boat. 42. On 27 January 2014 the UNHCR sent the Ministry of Shipping a document containing the statements it had gathered. 43. On 29 January 2014 the director of the national coordination centre informed the relevant committee of the Greek Parliament of the event in issue. He stated that at 1.45 a.m. on 20 January 2014 the PLS 136 had received information from the Farmakonisi military base that a stationary boat had been detected on the radar. The PLS 136 had approached the boat and begun to tow it towards the island of Farmakonisi at a low speed, making two attempts. The passengers had moved to one side of the boat, which had caused it to capsize. The coastguards had subsequently had to cut the rope. 44. On 27 January 2014 the Greek Council for Refugees sent a fax to recipients including the Ministry of Shipping and the Aegean, the Maritime Authority headquarters, the national cooperation centre and the Leros Maritime Authority, requesting a search for the bodies of the missing individuals. It also asked for information on the measures taken thus far in that connection. 45. On 29 January 2014 the investigating judge at the Kos Criminal Court of First Instance ordered the retrieval and expert examination of the fishing boat and the retrieval of the bodies as part of the proceedings against the applicant designated by number 11 in the appendix (see paragraph 55 et seq. below). 46. On 5 February 2014 the body of a minor was found in the Samos maritime region. On 18 March 2014 it was identified as that of the daughter of the applicant designated by number 1 in the appendix. A death certificate was issued that same day. 47. On 6 February 2014 the fishing boat was found in a location that, according to the applicants, was different from that given for the sinking. The applicants submitted that the two locations were 1,111 metres apart and that it was impossible for the fishing boat to have moved that far in sixteen days. They inferred from this that the location indicated as where the boat had sunk had been inaccurate and that the related report was not credible. 48. On 7, 17 and 19 February 2014 five bodies, three bodies and one body, respectively, were recovered from the sea by the coastguard underwater missions unit (Μονάδα Υποβρυχίων Αποστολών Λιμενικού Σώματος). In the meantime, work to recover the fishing boat was suspended because of the weather conditions. 49. On 18 February 2014 the fishing boat and remaining bodies were recovered from the sea. An expert examination was ordered. According to the applicants, it was noted that in ten days – that is, from 7 February 2014 when a buoy had been attached to the wreck to 17 February 2014 – the buoy and therefore the wreck had moved by between 50 and 80 metres. 50. On 11 March 2014 a forensic report and DNA testing identified the bodies of the children of the applicant designated by number 2 in the appendix – who was also the brother and sister of the applicants designated by numbers 4 and 5 in the appendix –, the bodies of the children of the applicant designated by number 1 in the appendix, the body of the wife of the applicant designated by number 1 in the appendix and the bodies of the wife and the son of the applicant designated by number 7 in the appendix. 51. On 28 March 2014 the death certificates were issued. The criminal proceedingsThe proceedings relating to the events of 20 January 2014

52. On 20 and 22 January 2014 the four PLS 136 crew members provided witness statements as part of an investigation into the events in issue. They indicated that two towing attempts had been made and that the fishing boat had capsized because of the sudden movements of those on board. 53. On 20, 21 and 22 January 2014 the applicants designated by numbers 1, 4, 5, 7, 8, 10, 12, 14 and 15 in the appendix provided witness statements to the maritime authorities as part of a spontaneous investigation into illegal entry and illegal transfer of people into Greece. According to those applicants, no certified interpreters working in a language they understood had taken part in the proceedings. The applicants indicated that two people who did not speak Greek and did not know how to read or write had acted as uncertified interpreters. They further stated that one of those two people spoke Urdu and the other Pashto, and that the latter individual had acted as an interpreter for the Farsi-speaking applicants. In their statements of 22 January 2014 the applicants designated by numbers 1, 5, 8, 10 and 12 in the appendix had affirmed that the boat had sunk because of the sudden movements of those on board and had thanked the coastguards for having rescued them. The applicants concerned denied having made the above-mentioned statements and challenged the accuracy of their content. 54. On an unspecified date the applicant designated by number 5 identified the bodies recovered by the Turkish authorities as the remains of the wife of the applicant designated by number 2, who had also been the mother of the applicants designated by numbers 4 and 5, and the remains of the son of the applicant designated by number 2, who had also been the brother of the applicants designated by numbers 4 and 5. The proceedings against the applicant designated by number 11 in the appendix
55. On 20 January 2014 the applicant designated by number 11, who was a minor at the relevant time, was arrested. He was suspected, in particular, of trafficking and endangerment in his capacity as captain of the fishing boat. 56. On 22 January 2014 the public prosecutor at the Kos Criminal Court of First Instance brought criminal charges against the applicant designated by number 11 in the appendix for “illegal trafficking of third-country nationals causing [their] death” and for illegal entry into Greece – conduct covered by Articles 83 § 1 (a) and 88 § 1 (b), (c) and (d) of Law no. 3386/2005. The applicant was remanded in custody. 57. On 24 January 2014 that applicant argued his case and denied the accusations against him. 58. On 5 February 2015 the three-member Dodecanese Criminal Court of Appeal sentenced the applicant designated by number 11 in the appendix to 145 years’ imprisonment (twenty-five years of which had been enforceable) and a fine of 570,500 euros (EUR), without suspension, for illegal trafficking of third-country nationals for profit causing death and for illegal entry into Greece (judgment no. 19/2015). In particular, it found that the applicant in question had been the captain of the fishing boat and that his actions had resulted in the death of two people by negligence. 59. The applicant in question appealed on that same day. The case was still pending at the stage of the exchange of observations. 60. On 19 June 2017 the five-member Dodecanese Criminal Court of Appeal imposed on the applicant designated by number 11 in the appendix an overall sentence of twenty-nine years’ imprisonment and a fine of EUR 14,000 for illegal trafficking of third-country nationals (judgment no. 69/2017). The applicant’s prison sentence was converted into a fine of EUR 5 per day of detention. The Dodecanese Criminal Court of Appeal held that the offence of illegal entry into Greece had become time-barred. 61. That judgment described the events of 20 January 2014 as follows:
“... it has not been shown that the death of the refugees being transported was caused by the conditions in which the defendant had carried out the transporting, nor that there is a causal link between the defendant’s act of transporting the above-mentioned third-country nationals in the aforementioned conditions and their deaths, in so far as their deaths were not caused by the transport or the conditions thereof but [occurred] later, while the boat was being inspected and towed ..., owing to the weather conditions and the sudden movement of the individuals on board the boat to a single place [on that vessel]. The exact cause of the drowning of twelve of the boat’s occupants (which had nothing to do with the conduct of the coastguards, who had come to inspect and to assist) was that, when some of the boat’s occupants fell overboard, all the others gathered together on that side (of the boat), which caused the boat to capsize and ultimately sink with the individuals on board. [The drowning of twelve individuals on board the boat was also due] to the fact that, at the relevant time, most of the boat’s occupants were in the inside cabin, that they did not know how to swim and that they did not have lifejackets. For that reason, the aggravating circumstance ... (causing death) cannot apply in the case of the defendant. ... Furthermore, it has not been shown that the defendant performed this act for profit, as no sum of money capable of proving a financial transaction took place with the boat occupants has been found ...”
62. No appeal was lodged against judgment no. 69/2017. The case file does not disclose the subsequent developments in the case. The proceedings against the coastguards
63. On 24 January 2014 the public prosecutor at the Kos Criminal Court of First Instance sent the Naval Court prosecutor copies of the case file so that the latter could investigate whether the coastguards involved in handling the incident in issue had been criminally liable in any way. 64. The Naval Court prosecutor ordered an investigation that same day. 65. On various dates the applicants, the PLS 136’s crew, coastguards, military personnel stationed on the island of Farmakonisi, members of the coastguard special forces unit stationed on Farmakonisi, coastguards stationed at the Leros Maritime Authority and the interpreters who had taken part in the Leros investigation provided witness statements. 66. On 7 and 20 February 2014 the Naval Court prosecutor ordered a primary and supplementary expert examination of the PLS 136 and the fishing boat. 67. On 30 April 2014 the public prosecutor at the Kos Criminal Court of First Instance sent to the Naval Court prosecutor the case file on the applicant designated by number 11 in the appendix. 68. On various dates the applicants asked the Naval Court prosecutor, among other people, to order the retrieval of the fishing boat and its examination by experts, to provide them with the recording of communications between the coastguards and data from the signal and radar at the Farmakonisi military base and to grant them leave to appoint an expert. The applicants claimed that only their requests to retrieve the fishing boat and appoint an expert had been granted. 69. On 27 June 2014, in decision no. 263/2014, the Naval Court prosecutor ordered the discontinuance of the proceedings concerning the offences of endangerment, boat sinking and physical injury as provided for in Articles 306, 277, 278 and 308 of the Criminal Code. In particular, the Naval Court prosecutor noted that the applicants’ statements of 20, 21 and 22 January 2014 had been “coherent, concise and consistent” (“ομόρροπες, σύντομες και αλληλοεπικαλυπτόμενες κατά περιεχόμενο”), that the applicants had made no allegations in their statements that the coastguards had been responsible for the boat sinking and that they had said they had been grateful to the coastguards for saving them from certain death. The prosecutor presented this version of events and pointed out that it had been broadly in line with that of the coastguards. He indicated that, after the applicants had arrived in Piraeus, they had changed their version of the conditions and causes of the sinking and of how the coastguards involved had handled the situation and that, in their new statements, they had blamed the coastguards for causing the sinking of the boat and the death of their family members. The prosecutor presented that version of events and the applicants’ allegations concerning the interpreters present for their statements of 20, 21 and 22 January 2014. In particular, he indicated that coastguard vessels patrolled the maritime border in order to “spot [vessels] in a timely manner and prevent/anticipate any attempts to enter [Greece] illegally”. He further stated that, in some cases, when a target arriving from Turkey but still in that country’s territorial waters approached the Greek coast, the Greek coordination and research centre would inform its Turkish counterpart so that the latter could pick up the vessel in question. However, according to the prosecutor, when such a vessel was detected in Greek territorial waters, the coastguard vessels on patrol were responsible for arresting the crew and recovering any passengers so they could be taken to the nearest port authority. According to the prosecutor, “when a person [fell] overboard while such an operation [was] taking place, the operation automatically [became] a search and rescue operation”. He further stated that, in those conditions, “there [was] no practice of push‑backs in the sense of a procedure of forcing back or towing such vessels towards Turkish territorial waters, because that could pose a threat ... both to the vessels involved and to their occupants” and that, in some cases, the boat occupants would destroy the plastic trim around their vessels so that the operation would turn into a search and rescue mission. Consequently, the prosecutor submitted, towing was a rare procedure and, in any event, one only performed at the full discretion of the captain of the coastguard vessel after an assessment of all the – typically complex – parameters and with a fundamental emphasis on people’s safety. 70. The prosecutor first added that the credibility of the applicants’ version had been undermined by the fact that the doctor who had examined them had not found any sign of ill-treatment, nor had they complained of any such treatment. Second, he noted that the area surrounding the fitting on the boat’s bow had remained relatively water-tight after the fitting itself had been torn off, because of a cavity intended for storing ropes. That fact had made it less likely that the torn-off fitting had been responsible for the boat taking on an increasing amount of water and more likely that the inflow of water had been due to the “general problems in the fishing boat’s construction” described in the expert report. Third, the prosecutor attached particular importance to the fact that, according to the statement of G., chief officer, once the fishing boat had been spotted, the captain of the PLS 136 had been ordered to “take [the passengers] to safety on Farmakonisi ...”. He noted that “from the outset, that order [had] set the scope of the coastguards’ intervention and any deviation therefrom, as the product and result of any action taken on their own initiative, [could not have been] persuasively and ... logically explained and [had not been] compatible with the hierarchical structure and the relationship of authority between superiors and those placed under their command (σχέσεις υπηρεσιακής επιβολής ανώτερου προς κατώτερο) that [had characterised] an organisation such as the coastguard, with its military character and corresponding functional aspect”. Fourth, the prosecutor pointed out that there had been discrepancies between the statements of the Afghan nationals, on the one hand, who had submitted that the crew of the PLS 136 had actively prevented them from coming on board their vessel for rescue, and those of the Syrian nationals, on the other, who had not claimed to have observed any such behaviour by the coastguards. 71. The prosecutor considered that, in any event, assessing each aspect of the two versions of events separately, comparing them, highlighting any discrepancies and drawing a final conclusion on the merits of each was secondary and unnecessary. That was because he considered that the applicants’ version had been based on the assumption that the fishing boat had been towed towards the Turkish coast at high speed for at least fifteen minutes and that, on account of that towing, the boat had taken on water, causing it to capsize and sink and resulting in the death of several individuals on board. The prosecutor considered, however, that that assumption was incompatible with the version presented in the military personnel’s statements, which could be considered trustworthy and objective because they were not from either party to the proceedings. The prosecutor concluded that “the emergence of that basic structural opposition” (“η ανάδειξη αυτής της βασικής δομικής αντίθεσης”) made it impossible to accept the applicants’ version of events and rendered any consideration of the particulars of those allegations unnecessary and of no use. He further stated that the expert report had aligned with and corroborated the coastguard’s version. 72. In that same decision criminal proceedings were instituted and an investigation (κύρια ανάκριση) ordered into the criminal liability of the Leros Maritime Authority personnel who had taken part in the investigation of 20 to 22 January 2014. In particular, an investigation was ordered into how the applicants’ statements had been taken and the exact interpreting provided during those proceedings (offences of repeated misrepresentations and repeated breaches of duty). 73. On 23 July 2014 the public prosecutor at the Naval Court of Appeal (αναθεωρητικό δικαστήριο) upheld the discontinuance of the case. The applicants were subsequently able to consult copies of the case file. The Greek Council for Refugees, which had been representing the applicants, commissioned an expert, who examined the case file and issued a report on 17 January 2015. The proceedings against interpreters H.S. and R.R. relating to the applicants’ statements on 20, 21 and 22 January 2014
74. On 13 February 2014 the public prosecutor at the Kos Criminal Court drew up a bill of indictment against H.S., who had been engaged as an interpreter when the applicants had given their statements on 20, 21 and 22 January 2014, for perjury committed in the course of interpreting, false testimony without an oath and falsification of certificates (Articles 220, 225 § 2 and 226 § 1 and 2 of the Criminal Code). 75. During an expert examination on 7 March 2014 H.S. failed to understand texts read out in Dari and Pashto but understood those read out in Urdu. R.R., on the other hand, understood texts read out in Dari and Urdu and also understood those read out in Pashto very well. 76. On 27 June 2014 the Piraeus Naval Court prosecutor sent the case file to the public prosecutor at the Kos Criminal Court of First Instance. He specified that H.S. and R.R., who had been engaged as interpreters when the applicants had given their statements on 20, 21 and 22 January 2014, were suspected of committing perjury in the course of interpreting. 77. In judgment no. 478/2015 of 26 September 2015 the Kos Criminal Court acquitted H.S. The defendant had submitted, inter alia, that he was a Pakistani national, that the maritime authorities had requested an Afghan interpreter, that Urdu and Farsi were two very different languages and that the coastguard had registered him as an Afghan national. The court found that the defendant did not speak the applicants’ language. The proceedings relating to the applicants’ allegations against coastguards S.M., K.P., P.-E.C. and E.V. in their statements of 20, 21 and 22 January 2014
78. On 27 June 2014 the Naval Court prosecutor ordered an investigation (κύρια ανάκριση) to be opened, in particular into S.M. and K.P. for repeated misrepresentations and breaches of duty, P.-E.C. for misrepresentation and perjury committed in the course of interpreting and E.V. for misrepresentation. 79. On 20 July 2015 the coastguards were acquitted by order no. 18/2015. No serious evidence of the offences was found, particularly with regard to malicious intent, as the defendants “[had been] aware of the inaccuracy of the interpreting because of the inadequacy of the interpreters” (“τελούσαν σε γνώση της ανακρίβειας της διερμηνείας λόγω ανεπάρκειας των διερμηνέων”). The proceedings against the military personnel alleged to have subjected the applicants to ill-treatment after their arrival on Farmakonisi
80. On 4 February 2014 the public prosecutor at the Athens Military Court ordered a preliminary investigation (προκαταρκτική εξέταση) into the applicants’ allegations that they had been subjected to ill-treatment on Farmakonisi. On 13 and 17 February 2014 the applicants designated by numbers 3, 4, 5, 6, 7, 14 and 16 in the appendix provided witness statements. They complained of the ill-treatment to which they had been subjected by “soldiers”, whom they identified as such because they had worn, they claimed, “clothes that looked like the clothes [worn in] the army”. On various dates the applicants designated by numbers 1, 2, 3, 6, 7, 8, 9, 10, 12, 13, 14 and 16 in the appendix stated their intention to join the criminal proceedings as civil parties and requested the sum of EUR 44 each. 81. On 17 and 21 February 2014 K.A., a doctor on military service, G.G., a captain, G.C., a sergeant, and E.C., a sergeant, all of whom had been on the island of Farmakonisi on 20 January 2014, provided witness statements. 82. On 20 March 2014 the applicants applied to join the proceedings before the Piraeus Naval Court as civil parties, inter alia because of the “inhuman and degrading treatment [within the meaning] of Articles 137A § 3 of the Criminal Code and Article 3 of the Convention ... [that they had] suffered at the hands of the coastguards ... during their arrest, their body searches and their detention on Farmakonisi ...”. 83. By order no. 2153/2014 of 21 March 2014 the proceedings concerning the military personnel’s criminal responsibility were discontinued. The relevant prosecutor held that the military personnel had committed no offences against the applicants and had not even had any physical contact with them. He further stated that the military personnel had not taken part in the body searches and had only provided security at the port of Farmakonisi and subsequently at the military base. He pointed out that there were indications that the coastguards had committed offences and that the applicants’ statements and the expert report had already been sent to the Piraeus Naval Court prosecutor. 84. On 16 April 2014 the Piraeus Naval Court prosecutor asked the governor of Avlonas Prison to take a statement from the applicant designated by number 11 in the appendix regarding the above-mentioned allegations. 85. On 17 April 2014 the applicant designated by number 11 in the appendix provided a witness statement. 86. On 27 June 2014 the Piraeus Naval Court prosecutor ordered the discontinuance of the proceedings concerning the offences of endangerment, boat sinking and physical injury (Articles 306, 277, 278 and 308 of the Criminal Code) (see paragraph 69 above). 87. On 23 July 2014 the public prosecutor at the Naval Court of Appeal upheld the discontinuance of the case (see paragraph 73 above). RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE
88. The relevant domestic and international legal framework and practice in the present case are described in the judgments Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 24-32, ECHR 2012; Tsalikidis and Others v. Greece, no. 73974/14, § 34, 16 November 2017; and Sarwari and Others v. Greece, no. 38089/12, § 60, 11 April 2019. 89. Article 98 § 2 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides:
“Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements co‑operate with neighbouring States for this purpose.”
THE LAW
ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION
90. Relying on Article 2 of the Convention, the applicants complained that, on account of the actions and/or omissions of the coastguards, their lives had been put in danger when the boat on which they had been travelling on 20 January 2014 had sunk off the island of Farmakonisi. Some of the applicants also complained about the death of their family members on that occasion. Relying on Article 2 of the Convention under its procedural head, the applicants alleged that the administrative and judicial investigation conducted in order to identify those responsible for the fatal accident had been inadequate. Under Article 13 of the Convention, they submitted that they had no effective domestic remedy by which to raise their complaint of a breach of Article 2. 91. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case. It considers that the applicants’ allegations should be examined solely under Article 2 of the Convention, the relevant part of which reads:
“1. Everyone’s right to life shall be protected by law. ...”
92. The Court will examine the applicants’ complaints first under the procedural head of Article 2 of the Convention and second under the substantive head of that Article. Effectiveness of the national authorities’ investigationsAdmissibility

93. The Government submitted that, in so far as the applicant designated by number 11 in the appendix was concerned, the Court should find an abuse of the right of application. They pointed out that this applicant had already been convicted for the death of some of the boat’s occupants and that, if no aggravating circumstance was found against him, he could still request that the Piraeus Naval Court reopen the case. 94. The Government further submitted that the applicant designated by number 11 in the appendix could not claim to be the victim of a violation of Articles 2 and 13 of the Convention given, first, that the proceedings against him were still pending before the domestic courts and, second, that he had not applied to join the proceedings before the Piraeus Naval Court as a civil party. With regard to the applicants designated by numbers 1, 2, 8, 9, 10, 11, 12, 13 and 15 in the appendix, the Government pointed out that, at least according to the case file, they had not applied to join the proceedings before the Military Court as civil parties. 95. The Government also argued that domestic remedies had not been exhausted. First, they pointed out that the proceedings were still pending before the domestic courts, that the national authorities had opened an investigation of their own motion, that the applicants had not appeared to give evidence as defence witnesses at the trial of the applicant designated by number 11 in the appendix and that the expert report they had submitted to the Court had not been presented to the Piraeus Naval Court prosecutor. Second, the Government held that the applicants could still, pursuant to Article 43 § 5 of the Code of Criminal Procedure, request that the Piraeus Naval Court and the Military Court reopen the case. In that connection, the Government emphasised that the report by the applicants’ expert had not been submitted to the Piraeus Naval Court prosecutor and that, furthermore, the applicants’ claim that the report did not amount to “new evidence” was hypothetical and had affected the judgment of the judicial authorities. The Government also pointed out that there had been cases where the prosecutor at the Naval Court of Appeal had not upheld the Naval Court prosecutor’s decision and had decided to bring criminal proceedings in accordance with Article 43 § 3 of the Code of Criminal Procedure. 96. Third, the Government stated that the applicants had not brought an action for damages against the State. They claimed that such a remedy would have enabled the applicants to obtain compensation and, through the court’s reasoning on civil liability, to establish the legal and factual basis for having the case reopened. The Government argued that the Court, in its case-law, had previously found that its role in the context of rescue operations had not been to investigate the individual responsibility of those who had planned and executed the operation but rather to rule on whether the State as a whole had complied with its international obligations. They advanced that, in the present case, the only issue being examined was whether all reasonably expected measures had been taken during the disputed incident to minimise the threat to the applicants’ lives. They further stated that the applicants were raising the matter of the State’s liability in general and complaining of failures in the planning and execution of the rescue operation. In the Government’s view, an action for damages would have been an effective remedy for establishing this liability. In addition, they pointed out that the applicants were claiming large sums of money before the Court in respect of just satisfaction – sums that could never be awarded by criminal courts. In doing so, argued the Government, the applicants were seeking to circumvent the proceedings before the civil courts. 97. Fourth, the Government affirmed that the applicants had not brought a complaint against the prosecutors for misuse of authority or a related action for damages (αγωγή κακοδικίας), despite arguing that the military courts had not been impartial. 98. The applicants submitted that the three-member Rhodes Criminal Court of Appeal had not had jurisdiction to rule on the coastguards’ responsibility and that only the military courts were competent in that respect. They claimed that the outcome of the proceedings against the applicant designated by number 11 in the appendix had not decisively settled the issue of whether the coastguards had borne responsibility. Such a possibility could not be excluded, they argued, because the lives of those on board the fishing boat had become the responsibility solely of the State from the moment the coastguards had taken charge of them. 99. Concerning the Government’s argument that the applicants should have brought an action for damages against the State, the applicants affirmed that they had attempted to have an effective investigation opened into the events in issue and to have those responsible punished – an outcome that would have had special significance for them. They added that any civil proceedings seeking only to award compensation and not to identify and punish those responsible would not have amounted to appropriate redress. 100. With regard to the option they had of requesting that the Naval Court reopen the case, the applicants pointed out that, even assuming such an application were admitted, it would not be able to remedy the failings of the previous investigation. They added that cases were reopened rarely in practice, and only when new evidence came to light after the case had been discontinued. In the present case, they argued, the decision regarding the criminal liability of the applicant designated by number 11 in the appendix did not amount to new evidence, as the existence of criminal proceedings against him had already been known at the time when the case had been discontinued. 101. The Court observes that some of the Government’s objections actually concern the exhaustion of domestic remedies. In this connection, it reiterates that the rule of exhaustion of domestic remedies is intended to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has a close affinity –, that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). 102. Article 35 § 1 of the Convention provides for a distribution of the burden of proof. When the respondent Government claim non-exhaustion of domestic remedies, they must satisfy the Court that the remedy to which they are referring was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II). 103. First, the Court observes that Article 105 of the Introductory Law to the Civil Code is a cross-cutting provision of Greek law that applies to many situations. When an action is brought on the basis of that Article, the courts examine as a subsidiary issue whether the authorities have committed an unlawful act and, if so, award the claimant a sum in respect of non-pecuniary damage. 104. The Court notes that the Government did not provide examples of judgments in which applicants had been awarded damages on account of acts or omissions by the authorities in similar situations. It is therefore not convinced that any such action for damages would have a reasonable prospect of success or in the present case would have offered appropriate redress at the relevant time. This observation in no way prejudices the Court’s position should the case-law of the domestic courts with respect to the application of the above-cited Article 105 subsequently evolve to take into account situations such as those in issue. 105. Notwithstanding the fact that the applicants did not make use of the remedies suggested by the Government, the Court considers that, in the light of the domestic case-law to date, their complaint cannot be dismissed for non‑exhaustion of domestic remedies. It thus dismisses the Government’s objection in this regard. 106. Second, the Court notes that neither the complaint against the prosecutors for misuse of authority nor the related action for damages were such as to remedy the alleged failures of the criminal proceedings concerning the circumstances of the events in issue (see Gjikondi and Others v. Greece, no. 17249/10, § 89 and 90, 21 December 2017). 107. Accordingly, the Court concludes that the objections raised by the Government in this respect must be dismissed. 108. The Court considers that the Government’s remaining objections concerning both the non-exhaustion of domestic remedies and the lack of victim status are closely linked to the substance of the applicants’ complaint under the procedural head of Article 2 of the Convention. It thus decides to join them to the merits. Conclusion
109. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

Outcome for Article 2: violation