Antje Kunst*
*Antje Kunst is
a global lawyer and barrister of Backyard Courtroom North Chambers, admitted
to the Bar of England and Wales, and the Bar of Berlin, advising and
representing people in a variety of issues associated to elementary
rights inside the CFSP and different fields. She has appeared in quite a few instances
earlier than each the Courtroom of Justice and the Normal Courtroom, inside the Courtroom of
Justice of the European Union.
Picture credit score: Francesco Placco, by way of Wikimedia
Commons
Introduction
Following the
listening to on 4 February 2025 by the Grand
Chamber on the enchantment
of Hamoudi v Frontex in Case C-136/24 in opposition to the Normal
Courtroom (GC)’s Order of 13 December 2023 the Advocate-Normal rendered his
opinion on 10 April 2025 (‘Opinion’).
As outlined right here,
the case of Hamoudi v. Frontex entails a Syrian asylum seeker, Mr. Alaa
Hamoudi, who, claims that on 28 and 29 April 2020 he was a sufferer of collective
expulsion within the Aegean Sea. On this context, Mr. Hamoudi asserts that whereas a gaggle
of twenty-two people together with himself have been at sea, a non-public surveillance
plane, geared up with a digital camera and operated by the European Border and Coast
Guard Company (Frontex), flew over
the scene twice. A extremely damaging report by the EU Anti-Fraud Workplace (‘OLAF
report’) on Frontex was made public by way of an NGO in October 2022 and lined
exactly the interval in query — together with April 2020 — and confirmed that incidents
of pushbacks occurred below Frontex’s watch, involving Frontex surveillance
plane within the Aegean Sea.
In an motion
for damages earlier than the EU Normal Courtroom, Mr. Hamoudi requested that he be
compensated by Frontex for the non-material injury suffered as a result of
collective expulsion. In his arguments earlier than the Normal Courtroom Mr. Hamoudi inter
alia asserted that as a result of Frontex surveillance plane flew over the
collective expulsion it had particular information of that incident however did not
report it and take acceptable motion as per its mandate (see para. 11 of the Opinion)
The Normal Courtroom
dismissed the motion as manifestly missing any basis in legislation. It discovered that
Mr. Hamoudi had did not show the precise injury he claimed to have suffered.
The proof adduced by the appellant ‘was manifestly inadequate to
show conclusively that he was current at and concerned within the alleged
incident of 28 and 29 April 2020’ (see paras. 39 and 62 of the Courtroom
Order).
Advocate
Normal’s restricted Evaluation: Reversal of the Burden of Proof
As requested by the
Courtroom of Justice of the European Union (‘Courtroom of Justice’ or ‘CJEU’) the
Advocate Normal centred his evaluation on a potential reversal of the burden of
proof in relation to the existence of injury in collective expulsion instances.
(para.22 of the Opinion).
In doing so, he appeared intimately on the
case-law of the Courtroom of Justice in numerous areas together with discrimination
(paras. 30 to 37 of the Opinion)
and the case legislation of the European Courtroom of
Human Rights (ECHR) in expulsion instances (paras. 40 to 50).
In his evaluation of
the case-law of the ECHR in expulsion instances he thought-about the current profitable
collective expulsion case of A.R.E.
v Greece particularly ‘instructive’.
Importantly, the
Advocate Normal referred to the truth that in A.R.E.,
the ECtHR utilized its case legislation on the burden of proof associated to secret
detention instances. As soon as the applicant presents prima facie proof, the
Courtroom might draw sturdy opposed inferences from the respondent authorities’s
failure to reveal important paperwork to ascertain the information, or failure to
provide a passable and convincing clarification of the alleged occasions. (paras. 41
to 44 of the Opinion)
According to the
jurisprudence of the CJEU and ECtHR, the Advocate Normal rightly emphasizes
that the burden of proof can’t be positioned on the claimant to ascertain information or
produce proof that’s prone to be completely within the possession or management
of the respondent, right here Frontex. If any concrete proof of collective expulsions
exists, it’s much more prone to be held by the alleged perpetrator moderately than
the sufferer. (para. 51 of the Opinion)
The Advocate Normal’s
three circumstances
Within the Advocate
Normal’s view, based mostly on the CJEU’s and ECtHR’s case legislation, the burden of proof
could also be reversed in instances like Mr. Hamoudi’s case when three circumstances are met.
The FIRST CONDITION:
(see para. 57 of the Opinion)
is that the claimant should current prima facie proof in assist of his
or her declare. If the claimant’s account is inconsistent, incoherent, or if the
claimant lacks credibility, this preliminary burden is just not met, and the case ought to
be dismissed. Consequently, the reversal of the burden of proof turns into
related solely as soon as a prima facie case has been established. On this
context, the Advocate Normal depends particularly on the case legislation of the
ECtHR, for instance as set out within the current case of G.R.J.
v Greece (see § 179).
As said right here,
from the questions of the judges on the listening to it seems that the Courtroom of
Justice is contemplating to carry that prima facie proof had been
introduced by Mr. Hamoudi. In any occasion, the Advocate Normal appropriately opines that
the Normal Courtroom might have positioned the ‘evidentiary bar’ too excessive within the first
place (para. 64 of the Opinion).
On this context, although, the Advocate Normal omits that the Normal Courtroom in
its evaluation of the proof failed to contemplate the assorted contradictory
public statements concerning the occasions by Frontex exterior the proceedings, in
specific when the OLAF
report was made public and essential basic contextual proof. Such
basic contextual proof was thought-about within the current G.R.J.
and A.R.E.
instances by the ECtHR. This proof led the ECtHR to conclude that there’s a
systemic apply of pushbacks within the Aegean See and that the Greek Authorities
did not refute the proof by offering a passable and convincing
various clarification (see § 190 in G.R.J.
and § 229 in A.R.E.
and footnote 80 of the Opinion).
The SECOND
CONDITION: (para. 59 of the Opinion)
for the burden of proof to shift is the existence of a clear or structural
imbalance in entry to proof—particularly, the place the claimant faces
important obstacles in presenting proof, whereas the respondent, on this
case Frontex, is in a greater or extra privileged place to refute the
allegations. Mr. Hamoudi, a susceptible asylum seeker together with his cell phone
confiscated, lacks the proof to show Frontex’s involvement within the occasions,
whereas the respondent is greatest positioned, in a privileged place to show
or disprove the allegations (see in additional element below: ‘Presumption of
privileged entry have to be relevant to Frontex’). There may be little doubt that
the second situation is met.
The THIRD CONDITION:
(para. 60 of the Opinion)
is that the failure to shift the burden of proof would render ineffective the
claimant’s (elementary) rights protected below EU legislation whereas a shift wouldn’t
undermine the respondent’s (elementary) rights below EU legislation. In Mr. Hamoudi’s
case the failure to shift the burden of proof would render ineffective his
elementary rights inter alia below Article 19 of the EU Constitution of Basic Rights
and undermine his proper to an efficient treatment below Article 47 of the Constitution.
The shift would not undermine any (elementary) proper of Frontex below
EU legislation. Quite the opposite, by offering proof to show or disprove the
allegation, Frontex assists the Courtroom in reaching an correct end result (concerning
a public authority’s responsibility pursuant to Article 24 of the Courtroom’s Statute to
help the Courtroom in reaching the right end result see extra right here).
Presumption of
privileged entry to proof not relevant?
Considerably
surprisingly in direction of the top of the Advocate Normal’s Opinion,
he expresses the view that the presumption established within the jurisprudence of
the ECtHR on expulsion instances—particularly, that the claimant is at an obstacle in
presenting proof whereas the respondent is in a stronger or extra privileged
place to rebut the allegations – is probably not relevant to Frontex. The ‘computerized’
shift of the burden of proof, as soon as prima facie proof has been
introduced, allegedly may solely be utilized when the authorities of a Member
State are concerned (paras. 61 and 62 of the Opinion).
This even though the AG opined earlier in his Opinion
(para. 29) that the variations within the procedures earlier than Strasbourg and the
CJEU are extra obvious than they’re actual.
Based on the
Advocate Normal, actors like Frontex possess extra restricted powers
in comparison with the authorities of a Member State, and it was unclear whether or not—and
to what extent—their actions contribute to the difficulties claimants face in
adducing proof of their involvement within the occasions at difficulty. As a consequence of these restricted
powers, it was not clear that they might be in a greater or extra privileged
place to rebut the claimant’s allegations (para. 62 of the Opinion).
The Advocate
Normal’s suggestion that Frontex’s actions should have contributed to the
difficulties skilled by the claimants in adducing proof of their
involvement within the occasions at difficulty is misplaced. This isn’t a requirement
below the case legislation of the Courtroom of Justice, nor below that of the ECtHR.
Based on this case legislation, it’s adequate to ascertain the evidentiary
difficulties confronted by the applicant and the respondent’s capability to supply
proof in rebuttal.
It’s wholly irrelevant
whether or not a Member State might have extra authority over sure kinds of proof. The difficulty is just not whether or not Frontex differs from
a Member State when it comes to powers over proof however moderately who holds
related proof, and who doesn’t. This have to be assessed in casu, e.g. right here in relation to Hamoudi and Frontex.
The Company is just not being requested to supply proof regarding Member States’
actions, however moderately proof concerning its personal actions or inactions, and
information, notably in gentle of its established presence and two lively
joint operations within the area.
On the listening to,
Frontex claimed its arms have been tied as a result of it didn’t have entry to proof
held by the Member State. That is irrelevant, what issues is that it has proof
in its possession and management which will reveal what the company did, did not do,
or knew concerning the alleged collective pushback motion on 28 and 29 April
2020 within the Aegean Sea.
Undesirable Penalties
of getting to show Privileged Entry to Proof
If, because the Advocate
Normal proposes, the burden of proof solely shifts when it’s first proven that
Frontex is best positioned to refute the allegations than a claimant, then in
apply, the burden may by no means shift. The Courtroom of Justice ought to firmly reject
this strategy.
Accepting that
Frontex is – not like a Member State – not presumed to have privileged entry to
proof would undermine its constructive obligations to guard elementary rights
of people in misery at sea and allow Frontex’s impunity and outright
ignores a textual studying of article 7(4) consistent with article 80(2) and 80(3)
of the Frontex
Regulation, which outlines the unique constructive human rights
tasks that Frontex has inside the context of joint operations. It
would danger making Frontex’s authorized obligations unenforceable. This might additionally
contradict the Advocate Normal’s THIRD CONDITION outlined in paragraph 60 of
the Opinion.
Presumption of
privileged entry have to be relevant to Frontex
Associated to Frontex’s
personal actions, its personal accountability to adjust to its personal
elementary rights obligations as per the Frontex Regulation,
and the hurt ensuing for claimants, Frontex have to be presumed of being in a
higher or extra privileged place in collective expulsion instances similar to
the current one.
The appellant is a
Syrian refugee, pushed again at evening, together with his cell phone confiscated and
lacks entry to the proof which exhibits Frontex’s involvement. Frontex, on the
different hand, operates its personal aerial surveillance techniques and joint operations
logs and collects video and radar information from its flights. The probability that it
possesses or has below its management related video surveillance footage and/or
incidents reviews, related logbooks on surveillance operations is extraordinarily
excessive which locations Frontex in a very privileged place with regard to
entry to proof in most of these instances. Furthermore, it was established within the
OLAF
report and throughout the listening to that Frontex was totally conscious of the apply
of so-called ghost landings pursued by the Hellenic coast guard and from that
flows the responsibility inside the context of its joint operations to collaborate with
Member State authorities to forestall human rights abuses.
Whereas it’s true,
because the Advocate Normal factors out, that the Normal Courtroom didn’t study
Frontex’s involvement in or information of the alleged occasions of 28 and 29 April
2020, this omission stems from the Normal Courtroom’s misguided unique concentrate on
the query of injury to the appellant and whether or not he was current and affected
by these occasions. Nonetheless, this can’t imply that Frontex can’t be considered
possessing or having below management the proof wanted to rebut Mr. Hamoudi’s allegations.
(c.f. para. 63 of the Opinion).
The very nature of ghost landings entails that the Hellenic Coastguard isn’t any
longer current at sea.
Accordingly, Frontex
is within the unique place and greatest positioned to verify or deny the prima
facie proof supplied by Mr. Hamoudi concerning the occasions that came about
at sea, together with whether or not it had a surveillance plane with a digital camera working
over the realm throughout the collective expulsion of 28 and 29 April 2020 however
did not report it.
If there’s an shift
of the burden of proof based mostly on the obtainable contextual and private prima
facie proof, Frontex wouldn’t face a probatio diabolica (an unimaginable
proof). Additionally it is not an unreasonable proof for Frontex to supply: recall
that its entry led to the damning report
by OLAF which affirmed its presence on the evening of 28-29 April. Frontex is
not requested to show information that lie utterly exterior its sphere of affect
and information (see the case legislation of the CJEU cited at para. 53 of the Opinion).
On the contrary: its being requested to supply proof concerning occasions taking
place inside the very space of the joint operations within the area, falling
solely and completely inside its mandate.
Conclusion
The Courtroom of
Justice within the current case ought to settle for that the three circumstances proposed by
the Advocate Normal have to be met in expulsion instances like this one for the
burden of proof to shift. It ought to maintain that this entails a reversal of the
burden of proof for Frontex when the case issues its personal actions or
inactions.
Opposite to the
Advocate Normal’s assertion in his Conclusion, the state of the proceedings earlier than
the Normal Courtroom permits the Courtroom of Justice to evaluate that the appellant
adduced prima facie proof (FIRST CONDITION) which does enable for the
burden of proof to shift, as Frontex is in a greater and extra privileged
place than the applicant to show or disprove its involvement in, and
information of, the alleged occasions (see Footnote 96 of the Opinion).
That is not a query for the Normal Courtroom to find out in proceedings
following a referral again to it (opposite to what the Advocate Normal proposed
in his Conclusion of his Opinion).
It’s nicely
established that Frontex possesses proof immediately linked to its core (and
unique) tasks, together with the gathering of surveillance information, the
manufacturing of incident and operational reviews, and the monitoring of
compliance with elementary rights as per Article 7(4) and 80(3) and 80(4) of
the Frontex
Regulation. This locations the company in a equally ‘privileged’ evidentiary
place as Member States are in relation to their very own tasks on this
case.
The Courtroom of
Justice ought to due to this fact put aside the order below enchantment, maintain that the three
circumstances for shifting the burden of proof as outlined by the Advocate Normal
are met in Hamoudi’s case as it will have been the case if the respondent had
been a Member State (see footnote 96 of the Advocate Normal’s Opinion).
It ought to refer the case again to the Normal Courtroom to reassess the matter,
taking into consideration that the burden of proof has shifted to Frontex.
