Antje Kunst*
* Antje Kunst is
a global lawyer and barrister of Backyard Court docket 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 throughout the CFSP and different fields. She has appeared in quite a few circumstances
earlier than each the Court docket of Justice and the Basic Court docket, throughout the Court docket of
Justice of the European Union.
Photograph credit score: Rock Cohen, by way of Wikimedia
Commons
Introduction
On 4 February 2025
the Grand Chamber held a listening to on the enchantment
of Hamoudi v Frontex in Case C-136/24 in opposition to the Basic
Court docket (GC)’s Order of 13 December 2023. This enchantment is happening alongside
the separate problem in WS v Frontex (see evaluation
of that case and abstract
of the listening to).
The case of Hamoudi
v. Frontex considerations Syrian asylum seeker Alaa Hamoudi, who alleges that on
28 April 2020, he and 21 different people have been subjected to a pushback
operation within the Aegean Sea. He claims that upon arriving from Turkey by boat,
he entered Greek territory on the island of Samos to hunt asylum. Native police
intercepted him, confiscated his cell phone, and later that day, Greek
authorities compelled him and the others again out to sea. The next day, a
vessel from the Turkish coast guard took them aboard. Hamoudi additionally alleges that
on 29 April 2020, whereas at sea, a personal surveillance plane operated by
Frontex, outfitted with a digicam, flew over the scene twice.
In February 2022
OLAF issued a extremely damaging report
on Frontex which addresses incidents of unlawful pushbacks involving Frontex property
like Frontex Surveillance Plane, particularly within the Aegean Sea, in late
April 2020. This report was not made publicly obtainable (see right here
extra on this reality).
In March 2022, Mr.
Hamoudi introduced an
motion pursuant to Article 340.2 TFEU in opposition to Frontex, in search of €500,000 compensation
for non-material in harm in respect of violations of his elementary rights,
together with the prohibition of collective expulsion and the precept of
non-refoulement below the EU Constitution of
Basic Rights.
The GC dismissed
the motion by Court docket Order stating it “manifestly lacked any basis in
regulation.” (para. 62 of the Court docket
Order). The GC discovered that the appellant’s personal written assertion taken by an
NGO greater than a 12 months and a half after the occasions, a Bellingcat article, and
4 screenshots from third-party video recordings of the pushback have been
“manifestly inadequate” to conclusively show Hamoudi’s presence or
involvement within the incident. It additional
famous that the claimant couldn’t be recognized within the pictures. Additional his personal written
assertion lacked credibility (paras. 40 and 41 of the Court docket
Order).
Hamoudi appealed
this resolution on 19 February 2024, contending that the Basic Court docket erred in its
authorized evaluation and mischaracterized the information.
Relevance of two
ECtHR expulsion circumstances
In January 2025, in
two groundbreaking judgments A.R.E. and
G.R.J.
v. Greece the European Court docket of Human
Rights (ECtHR) unanimously confirmed Greece’s “systematic follow” of
pushbacks of third-country nationals from Greece again to Turkey. Each ECtHR circumstances
are very related by way of information to the Hamoudi case. The G.R.J. case which was referred to by the judges
throughout the listening to considerations like within the Hamoudi case a pushback from the
island of Samos to Turkey in 2020.
Considerably the
events have been requested to touch upon the relevance of those two judgments seemingly
with a view to think about the ECtHR’s discovering on the existence of a “systematic
follow” of pushbacks by Greece. The Court docket would possibly prone to be impressed by the
ECtHR strategy in these kind of circumstances, if not align its case regulation with the
Strasbourg Court docket’s massive case regulation on expulsion. Each Courts have engaged within the
previous in a judicial dialogue, referring to one another’s case regulation, aiming for
consistency in defending human rights of people.
Helping the
court docket in reaching the proper consequence
Pushbacks are
troublesome to show, particularly once they occur at evening and cell phones
are confiscated or destroyed (as occurred to the appellant and candidates in ECtHR
circumstances (e.g., in A.R.E. para. 266).
In proceedings
earlier than the ECtHR, respondent states typically deny the information reasonably than disclosing
related data, surveillance footage, or pictures and movies documenting the
occasions, as elaborated right here.
In Hamoudi, Frontex representatives, throughout the listening to earlier than the Grand
Chamber, claimed it was unclear whether or not Frontex had been current on the scene
of the occasions, noting that “they’d not been monitoring the state of affairs
from afar by means of their binoculars” (see right here).
The query
arises: Is it acceptable for an EU company like Frontex to current such
arguments, displaying a stance just like that of states earlier than the ECtHR? Or
does it, as a substitute, have an obligation to help the Court docket? Article 24 of the Court docket’s Statute
offers that the Court docket “might require the events to supply all paperwork and
to produce all data which the Court docket considers fascinating.” This provision
establishes not solely a procedural obligation for the events to cooperate absolutely
with the Court docket but in addition an implicit obligation to help the Court docket in reaching an correct
consequence. The Court docket right here depends on the transparency and good religion of the
events to uncover the related information and produce it earlier than the Court docket.
In UK public regulation there
is an obligation
of candour vis-à-vis the Court docket. The obligation of candour requires a public
authority “to not search to win [a] litigation in any respect prices however to help
the court docket in reaching the proper consequence and thereby to enhance requirements in
public administration.” (see additionally right here)
This precept is
not unknown in member states. In Germany for instance pursuant to §99
Administrative Court docket Process Code and §138
Code of Civil Process , public authorities should act in truth and absolutely
cooperate with the executive courts.
Arguably as an EU
company, Frontex, and based mostly on Article 24 of the Court docket’s Statute it has an obligation
to help the Court docket in reaching the proper consequence by offering data and
disclosing proof solely inside its possession, even when that proof
could also be unfavourable to its case. In different phrases, it’s not acceptable for
Frontex to undertake the identical strategy as states in these kind of circumstances.
Moreover, opposite
to what the EU Company offered earlier than the Court docket, Frontex additionally “sits on
proof” -not solely the member states- associated to its actions amassing
proof when it carries out its help and surveillance actions performing
below a transparent mandate to guard the elemental rights of people in
misery at sea, in accordance with Articles 80(2) and 80(3) of the Frontex Regulation.
Unimaginable proof
The burden of proof
imposed by the GC amounted to probatio diabolica, an unimaginable
proof for Mr. Hamoudi.
There could be
circumstances by which candidates are in a position to present sturdy proof associated to their
particular person state of affairs, equivalent to images, video recordings, and witness
testimonies. The possession of cell phones with geolocation capabilities
provides victims of pushback operations new means to offer proof of their
presence in a sure space or to show the involvement of Frontex.
Normally,
people like Hamoudi face critical sensible difficulties in gathering
proof. The incident happened at evening and below very worrying situations,
with Hamoudi being within the open sea in a ship. Hamoudi was unable, each
bodily and mentally, to assemble any proof. (see extra on this right here) Taking away
cell phones as occurred to Mr. Hamoudi makes it unimaginable for the sufferer to
use such proof. That is what the
Basic Court docket failed to think about.
Making use of the
guidelines governing the burden of proof in Strasbourg expulsion circumstances
The appellant argues
in his enchantment
that the Basic Court docket (GC) dedicated an error of regulation by failing to correctly
assess and apply the related guidelines governing the burden of proof.
Particularly, the appellant contends that the GC didn’t think about the authorized
standards established by the ECtHR in its expulsion case regulation, which aligns with
the EU Court docket’s personal established follow (e.g., in discrimination circumstances).
When adjudicating
such circumstances, the ECtHR shifts the burden of proof to the state as elaborated right here the place there may be totally different entry to
data which benefits the state and leaves the applicant with out
proof or when the defending State possesses data that might corroborate or refute the applicant’s allegations. Regardless of
what Frontex alleged on the listening to Frontex actually has entry to data
relating to the occasions in query as additionally the OLAF report
reveals. This pertains to data relating to its personal compliance with its personal elementary
rights obligations and the existence of the immaterial hurt stemming from the
occasions throughout the evening in query.
The ECtHR expulsion
case regulation offers that after an applicant has furnished prima facie proof in
help of his or her model of occasions, the burden of proof ought to shift to
the respondent when (a) there may be an absence of customized remedy—equivalent to
not being interviewed or having private particulars taken—which lies on the very
core of the applicant’s grievance, as within the current case; and (b) this absence
has contributed to the issue in adducing proof of involvement within the
occasion (see Case of
N.D. and N.T. v. Spain, para. 85).
As analysed right here in
its latest rulings the ECtHR has explicitly acknowledged that the state’s
full denial of alleged information locations the applicant in an inherently
troublesome evidentiary place, by which they might be unable to determine the
veracity of their account (A.R.E.,
para. 218; G.R.J., para. 183).
The consolidated
case regulation of the ECtHR relating to the reversal of the burden of proof would possibly serve
as a compelling supply of inspiration for the ECJ’s judges on this particular
case, which bears vital similarities to the massive variety of expulsion
circumstances the ECtHR has adjudicated, most not too long ago in G.R.J.
The truth that this
is an software for damages below Article 340(2) TFEU in opposition to an EU company,
reasonably than a human rights software earlier than the ECtHR in opposition to a state, does
not make a distinction, as related goals are pursued. The judges would possibly
think about that the situations to be met for being profitable with declare for
damages earlier than the ECJ are considerably greater than a human rights software
earlier than the ECtHR. This is applicable significantly to the extra in depth necessities
for proving hurt below the ECJ’s case regulation in comparison with the requirements for
establishing sufferer standing below Strasbourg case regulation. In different phrases, and
opposite to what Frontex appeared to suggest throughout the listening to, the bar for
establishing legal responsibility stays excessive and substantial.
Meet prima facie
threshold
To satisfy the prima facie
threshold below the ECtHR, commonly two key parts are required (a) a person
account which is particular, constant, usually coherent, and credible and (b)
basic context proof in regards to the broader context related to candidates’
claims. In G.R.J. the ECtHR relied on such basic context
proof: “[h]aving regard to the massive quantity, range, and concordance of
the related sources …the Court docket concludes that there’s critical proof to
recommend that, on the time of the alleged occasions, there was a scientific
follow of refoulement by the Greek authorities of third-country nationals
from the Greek islands to Turkey.” G.R.J.
, para. 190, unofficial translation. Contradictions within the respondent’s
statements can be thought-about as effectively.
It appeared from
the judges’ questions throughout the listening to that the Court docket was certainly contemplating holding
that the Basic Court docket had failed to think about shifting the burden of proof to
the EU Company. This isn’t shocking in view of its personal well-established case
regulation on the reversal of the burden of proof in related circumstances of asymmetry of
entry to data, albeit in different areas (e.g., discrimination) and its
strategy to think about related case regulation of the ECtHR as a supply of inspiration.
On this regard, the Court docket has ample causes to carry that the applicant has
offered prima facie proof of the violation and that the Basic Court docket
ought to have thought-about shifting the burden of proof to Frontex.
The judges inquired
about OLAF’s 2021 report
on Frontex and its findings in regards to the occasions of 28 and 29 April 2020. It
talked about the truth that the report refers to 2 Frontex officers confirming
the credibility of the Bellingcat article admitting that the operation of which
Mr. Hamoudi claims to be the sufferer of happened. In any occasion, if the case
had been thought-about by the Strasbourg Court docket, it could have discovered that the
particular and constant account by Mr. Hamoudi, partially corroborated by
OLAF’s findings and the Bellingcat article, constitutes prima facie proof,
thereby triggering a shift within the burden of proof. The Court docket of Justice could be justified in
following the Strasbourg case regulation and reaching this conclusion. That is additionally so
due to the broadly documented data on the final context and the
myriad of contradictory statements in regards to the occasions by Frontex outdoors the
proceedings.
Refuting the
appellant’s claims
Frontex confused at
the listening to that it couldn’t “stay up” to substantiating, refuting or
corroborating the prima facie proof of the appellant. It was in a state of affairs
of an unimaginable proof. That is wholly unconvincing. Frontex might merely evaluate
its data or surveillance footage to find out whether or not, on the related date
and time, its surveillance aircrafts have been working over the realm the place the
illegal pushback of Mr. Hamoudi occurred. Frontex carried out two lively
operations within the area and is finest positioned to substantiate or refute the
appellant’s claims. With an express to mandate to offer help to Greece in
the Aegean Sea absolutely conscious of Greece’s shady practices and below an express
mandate to safeguard elementary rights of people in misery at sea as
per Article 80 (2) and 80 (3) of the Frontex Regulation
it was monitoring the state of affairs.
Conclusion
Enabling the EU
Courts to deal with the authorized evaluation of alleged elementary rights
violations in such circumstances by offering as a lot factual data as doable
serves the pursuits of all events concerned—together with the Court docket itself.
Frontex has confronted
vital criticism over alleged pushback practices within the Aegean Sea,
elevating critical considerations about compliance with its elementary rights
obligations. It’s within the Company’s curiosity to be as clear as doable,
to not search to win a litigation such because the Hamoudi case in any respect prices
however to help the court docket in reaching the proper consequence. By doing so, Frontex
can contribute to reinforcing belief within the EU Company’s dedication to human
rights and accountability.
