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 throughout the CFSP and different fields. She has appeared in quite a few circumstances
earlier than each the Courtroom of Justice and the Common Courtroom, throughout the Courtroom of
Justice of the European Union.
Photograph credit score: Rock Cohen, through Wikimedia
Commons
Introduction
On 4 February 2025
the Grand Chamber held a listening to on the attraction
of Hamoudi v Frontex in Case C-136/24 in opposition to the Common
Courtroom (GC)’s Order of 13 December 2023. This attraction is going down 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 issues 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 pressured 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 out there (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 injury 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 Courtroom Order stating it “manifestly lacked any basis in
regulation.” (para. 62 of the Courtroom
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 photos. Additional his personal written
assertion lacked credibility (paras. 40 and 41 of the Courtroom
Order).
Hamoudi appealed
this choice on 19 February 2024, contending that the Common Courtroom erred in its
authorized evaluation and mischaracterized the details.
Relevance of two
ECtHR expulsion circumstances
In January 2025, in
two groundbreaking judgments A.R.E. and
G.R.J.
v. Greece the European Courtroom of Human
Rights (ECtHR) unanimously confirmed Greece’s “systematic apply” of
pushbacks of third-country nationals from Greece again to Turkey. Each ECtHR circumstances
are very comparable when it comes to details to the Hamoudi case. The G.R.J. case which was referred to by the judges
through the listening to issues 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
apply” of pushbacks by Greece. The Courtroom may more likely to be impressed by the
ECtHR strategy in all these circumstances, if not align its case regulation with the
Strasbourg Courtroom’s giant 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
courtroom in reaching the proper consequence
Pushbacks are
tough to show, particularly once they occur at evening and cellphones
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 usually deny the details moderately than disclosing
related information, surveillance footage, or photographs and movies documenting the
occasions, as elaborated right here.
In Hamoudi, Frontex representatives, through 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 “that they had not been monitoring the state of affairs
from afar by way 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 much like that of states earlier than the ECtHR? Or
does it, as an alternative, have an obligation to help the Courtroom? Article 24 of the Courtroom’s Statute
gives that the Courtroom “might require the events to provide all paperwork and
to produce all data which the Courtroom considers fascinating.” This provision
establishes not solely a procedural obligation for the events to cooperate absolutely
with the Courtroom but in addition an implicit responsibility to help the Courtroom in reaching an correct
final result. The Courtroom right here depends on the transparency and good religion of the
events to uncover the related details and produce it earlier than the Courtroom.
In UK public regulation there
is an obligation
of candour vis-à-vis the Courtroom. The responsibility of candour requires a public
authority “to not search to win [a] litigation in any respect prices however to help
the courtroom 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 Courtroom 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 primarily based on Article 24 of the Courtroom’s Statute it has an obligation
to help the Courtroom in reaching the proper consequence by offering data and
disclosing proof completely inside its possession, even when that proof
could also be unfavourable to its case. In different phrases, it isn’t acceptable for
Frontex to undertake the identical strategy as states in all these circumstances.
Moreover, opposite
to what the EU Company introduced earlier than the Courtroom, Frontex additionally “sits on
proof” -not solely the member states- associated to its actions accumulating
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 not possible
proof for Mr. Hamoudi.
There could be
circumstances wherein candidates are in a position to present strong proof associated to their
particular person state of affairs, similar to pictures, video recordings, and witness
testimonies. The possession of cellphones with geolocation capabilities
offers victims of pushback operations new means to offer proof of their
presence in a sure space or to show the involvement of Frontex.
Typically,
people like Hamoudi face severe sensible difficulties in gathering
proof. The incident passed off at evening and below very anxious 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
cellphones as occurred to Mr. Hamoudi makes it not possible for the sufferer to
use such proof. That is what the
Common Courtroom failed to think about.
Making use of the
guidelines governing the burden of proof in Strasbourg expulsion circumstances
The appellant argues
in his attraction
that the Common Courtroom (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 contemplate the authorized
standards established by the ECtHR in its expulsion case regulation, which aligns with
the EU Courtroom’s personal established apply (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’s 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
concerning the occasions in query as additionally the OLAF report
reveals. This pertains to data concerning its personal compliance with its personal elementary
rights obligations and the existence of the immaterial hurt stemming from the
occasions through the evening in query.
The ECtHR expulsion
case regulation gives that when 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’s an absence of customized remedy—similar 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 current rulings the ECtHR has explicitly acknowledged that the state’s
full denial of alleged details locations the applicant in an inherently
tough evidentiary place, wherein they could 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 concerning the reversal of the burden of proof may serve
as a compelling supply of inspiration for the ECJ’s judges on this particular
case, which bears vital similarities to the big 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,
moderately than a human rights software earlier than the ECtHR in opposition to a state, does
not make a distinction, as comparable aims are pursued. The judges may
contemplate that the situations to be met for being profitable with declare for
damages earlier than the ECJ are considerably increased than a human rights software
earlier than the ECtHR. This is applicable significantly to the extra intensive 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 through 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, repeatedly two key components are required (a) a person
account which is restricted, constant, usually coherent, and credible and (b)
normal context proof in regards to the broader context related to candidates’
claims. In G.R.J. the ECtHR relied on such normal context
proof: “[h]aving regard to the big quantity, variety, and concordance of
the related sources …the Courtroom concludes that there’s severe proof to
recommend that, on the time of the alleged occasions, there was a scientific
apply 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 will likely be thought-about as properly.
It appeared from
the judges’ questions through the listening to that the Courtroom was certainly contemplating holding
that the Common Courtroom 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 comparable 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 Courtroom has ample causes to carry that the applicant has
supplied prima facie proof of the violation and that the Common Courtroom
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 passed off. In any occasion, if the case
had been thought-about by the Strasbourg Courtroom, it will 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 Courtroom 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 overall context and the
myriad of contradictory statements in regards to the occasions by Frontex outdoors the
proceedings.
Refuting the
appellant’s claims
Frontex pressured at
the listening to that it couldn’t “reside up” to substantiating, refuting or
corroborating the prima facie proof of the appellant. It was in a state of affairs
of an not possible proof. That is wholly unconvincing. Frontex might merely overview
its information or surveillance footage to find out whether or not, on the related date
and time, its surveillance aircrafts have been working over the world the place the
illegal pushback of Mr. Hamoudi occurred. Frontex performed two energetic
operations within the area and is greatest positioned to substantiate or refute the
appellant’s claims. With an specific to mandate to offer help to Greece in
the Aegean Sea absolutely conscious of Greece’s shady practices and below an specific
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 give attention to the authorized evaluation of alleged elementary rights
violations in such circumstances by offering as a lot factual data as attainable
serves the pursuits of all events concerned—together with the Courtroom itself.
Frontex has confronted
vital criticism over alleged pushback practices within the Aegean Sea,
elevating severe issues about compliance with its elementary rights
obligations. It’s within the Company’s curiosity to be as clear as attainable,
to not search to win a litigation such because the Hamoudi case in any respect prices
however to help the courtroom 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.
