Antje Kunst*
* Antje Kunst is
an international lawyer and barrister of Garden Court North Chambers, admitted
to the Bar of England and Wales, and the Bar of Berlin, advising and
representing individuals in a wide range of matters related to fundamental
rights within the CFSP and other fields. She has appeared in numerous cases
before both the Court of Justice and the General Court, within the Court of
Justice of the European Union.
Photo credit: Rock Cohen, via Wikimedia
Commons
Introduction
On 4 February 2025
the Grand Chamber held a hearing on the appeal
of Hamoudi v Frontex in Case C-136/24 against the General
Court (GC)’s Order of 13 December 2023. This appeal is taking place alongside
the separate challenge in WS v Frontex (see analysis
of that case and summary
of the hearing).
The case of Hamoudi
v. Frontex concerns Syrian asylum seeker Alaa Hamoudi, who alleges that on
28 April 2020, he and 21 other individuals were subjected to a pushback
operation in the Aegean Sea. He claims that upon arriving from Turkey by boat,
he entered Greek territory on the island of Samos to seek asylum. Local police
intercepted him, confiscated his mobile phone, and later that day, Greek
authorities forced him and the others back out to sea. The following day, a
vessel from the Turkish coast guard took them aboard. Hamoudi also alleges that
on 29 April 2020, while at sea, a private surveillance aircraft operated by
Frontex, equipped with a camera, flew over the scene twice.
In February 2022
OLAF issued a highly damaging report
on Frontex which addresses incidents of illegal pushbacks involving Frontex assets
like Frontex Surveillance Aircraft, in particular in the Aegean Sea, in late
April 2020. This report was not made publicly available (see here
more on this fact).
In March 2022, Mr.
Hamoudi brought an
action pursuant to Article 340.2 TFEU against Frontex, seeking €500,000 compensation
for non-material in damage in respect of violations of his fundamental rights,
including the prohibition of collective expulsion and the principle of
non-refoulement under the EU Charter of
Fundamental Rights.
The GC dismissed
the action by Court Order stating it "manifestly lacked any foundation in
law." (para. 62 of the Court
Order). The GC found that the appellant’s own written statement taken by an
NGO more than a year and a half after the events, a Bellingcat article, and
four screenshots from third-party video recordings of the pushback were
“manifestly insufficient” to conclusively prove Hamoudi’s presence or
involvement in the incident. It further
noted that the claimant could not be identified in the images. Further his own written
statement lacked credibility (paras. 40 and 41 of the Court
Order).
Hamoudi appealed
this decision on 19 February 2024, contending that the General Court erred in its
legal assessment and mischaracterized the facts.
Relevance of two ECtHR expulsion cases
In January 2025, in
two groundbreaking judgments A.R.E. and
G.R.J.
v. Greece the European Court of Human
Rights (ECtHR) unanimously confirmed Greece's “systematic practice” of
pushbacks of third-country nationals from Greece back to Turkey. Both ECtHR cases
are very similar in terms of facts to the Hamoudi case. The G.R.J. case which was referred to by the judges
during the hearing concerns like in the Hamoudi case a pushback from the
island of Samos to Turkey in 2020.
Significantly the
parties were asked to comment on the relevance of these two judgments seemingly
with a view to consider the ECtHR’s finding on the existence of a “systematic
practice” of pushbacks by Greece. The Court might likely to be inspired by the
ECtHR approach in these types of cases, if not align its case law with the
Strasbourg Court’s large case law on expulsion. Both Courts have engaged in the
past in a judicial dialogue, referring to each other’s case law, aiming for
consistency in protecting human rights of individuals.
Assisting the
court in reaching the correct result
Pushbacks are
difficult to prove, in particular when they happen at night and mobile phones
are confiscated or destroyed (as happened to the appellant and applicants in ECtHR
cases (e.g., in A.R.E. para. 266).
In proceedings
before the ECtHR, respondent states often deny the facts rather than disclosing
relevant records, surveillance footage, or photos and videos documenting the
events, as elaborated here.
In Hamoudi, Frontex representatives, during the hearing before the Grand
Chamber, claimed it was unclear whether Frontex had been present at the scene
of the events, noting that "they had not been monitoring the situation
from afar through their binoculars" (see here).
The question
arises: Is it acceptable for an EU agency like Frontex to present such
arguments, displaying a stance similar to that of states before the ECtHR? Or
does it, instead, have a duty to assist the Court? Article 24 of the Court’s Statute
provides that the Court “may require the parties to produce all documents and
to supply all information which the Court considers desirable.” This provision
establishes not only a procedural obligation for the parties to cooperate fully
with the Court but also an implicit duty to assist the Court in reaching an accurate
outcome. The Court here relies on the transparency and good faith of the
parties to uncover the relevant facts and produce it before the Court.
In UK public law there
is a duty
of candour vis-à-vis the Court. The duty of candour requires a public
authority "not to seek to win [a] litigation at all costs but to assist
the court in reaching the correct result and thereby to improve standards in
public administration." (see also here)
This principle is
not unknown in member states. In Germany for example pursuant to §99
Administrative Court Procedure Code and §138
Code of Civil Procedure , public authorities must act truthfully and fully
cooperate with the administrative courts.
Arguably as an EU
agency, Frontex, and based on Article 24 of the Court’s Statute it has a duty
to assist the Court in reaching the correct result by providing information and
disclosing evidence exclusively within its possession, even if that evidence
may be unfavourable to its case. In other words, it is not acceptable for
Frontex to adopt the same approach as states in these types of cases.
Furthermore, contrary
to what the EU Agency presented before the Court, Frontex also “sits on
evidence” -not only the member states- related to its activities collecting
evidence when it carries out its assistance and surveillance activities acting
under a clear mandate to protect the fundamental rights of individuals in
distress at sea, in accordance with Articles 80(2) and 80(3) of the Frontex Regulation.
Impossible proof
The burden of proof
imposed by the GC amounted to probatio diabolica, an impossible
proof for Mr. Hamoudi.
There might be
cases in which applicants are able to provide robust evidence related to their
individual situation, such as photographs, video recordings, and witness
testimonies. The possession of mobile phones with geolocation capabilities
gives victims of pushback operations new means to provide proof of their
presence in a certain area or to prove the involvement of Frontex.
In most cases,
individuals like Hamoudi face serious practical difficulties in gathering
evidence. The incident took place at night and under very stressful conditions,
with Hamoudi being in the open sea in a boat. Hamoudi was unable, both
physically and mentally, to gather any evidence. (see more on this here) Taking away
mobile phones as happened to Mr. Hamoudi makes it impossible for the victim to
use such evidence. This is what the
General Court failed to consider.
Applying the
rules governing the burden of proof in Strasbourg expulsion cases
The appellant argues
in his appeal
that the General Court (GC) committed an error of law by failing to properly
assess and apply the relevant rules governing the burden of proof.
Specifically, the appellant contends that the GC did not consider the legal
criteria established by the ECtHR in its expulsion case law, which aligns with
the EU Court’s own established practice (e.g., in discrimination cases).
When adjudicating
such cases, the ECtHR shifts the burden of proof to the state as elaborated here where there is different access to
information which advantages the state and leaves the applicant without
evidence or when the defending State possesses information that could corroborate or refute the applicant’s allegations. Despite
what Frontex alleged at the hearing Frontex certainly has access to information
regarding the events in question as also the OLAF report
shows. This relates to information regarding its own compliance with its own fundamental
rights obligations and the existence of the immaterial harm stemming from the
events during the night in question.
The ECtHR expulsion
case law provides that once an applicant has furnished prima facie evidence in
support of his or her version of events, the burden of proof should shift to
the respondent when (a) there is an absence of personalized treatment—such as
not being interviewed or having personal details taken—which lies at the very
core of the applicant’s complaint, as in the present case; and (b) this absence
has contributed to the difficulty in adducing evidence of involvement in the
event (see Case of
N.D. and N.T. v. Spain, para. 85).
As analysed here in
its recent rulings the ECtHR has explicitly acknowledged that the state’s
complete denial of alleged facts places the applicant in an inherently
difficult evidentiary position, in which they may be unable to establish the
veracity of their account (A.R.E.,
para. 218; G.R.J., para. 183).
The consolidated
case law of the ECtHR regarding the reversal of the burden of proof might serve
as a compelling source of inspiration for the ECJ’s judges in this specific
case, which bears significant similarities to the large number of expulsion
cases the ECtHR has adjudicated, most recently in G.R.J.
The fact that this
is an application for damages under Article 340(2) TFEU against an EU agency,
rather than a human rights application before the ECtHR against a state, does
not make a difference, as similar objectives are pursued. The judges might
consider that the conditions to be met for being successful with claim for
damages before the ECJ are significantly higher than a human rights application
before the ECtHR. This applies particularly to the more extensive requirements
for proving harm under the ECJ’s case law compared to the standards for
establishing victim status under Strasbourg case law. In other words, and
contrary to what Frontex appeared to imply during the hearing, the bar for
establishing liability remains high and substantial.
Meet prima facie
threshold
To meet the prima facie
threshold under the ECtHR, regularly two key elements are required (a) an individual
account which is specific, consistent, generally coherent, and credible and (b)
general context evidence concerning the broader context relevant to applicants’
claims. In G.R.J. the ECtHR relied on such general context
evidence: “[h]aving regard to the large number, diversity, and concordance of
the relevant sources …the Court concludes that there is serious evidence to
suggest that, at the time of the alleged events, there was a systematic
practice of refoulement by the Greek authorities of third-country nationals
from the Greek islands to Turkey.” G.R.J.
, para. 190, unofficial translation. Contradictions in the respondent’s
statements will be considered as well.
It appeared from
the judges' questions during the hearing that the Court was indeed considering holding
that the General Court had failed to consider shifting the burden of proof to
the EU Agency. This is not surprising in view of its own well-established case
law on the reversal of the burden of proof in similar cases of asymmetry of
access to information, albeit in other areas (e.g., discrimination) and its
approach to consider relevant case law of the ECtHR as a source of inspiration.
In this regard, the Court has ample reasons to hold that the applicant has
provided prima facie evidence of the violation and that the General Court
should have considered shifting the burden of proof to Frontex.
The judges inquired
about OLAF’s 2021 report
on Frontex and its findings concerning the events of 28 and 29 April 2020. It
mentioned the fact that the report refers to two Frontex officers confirming
the credibility of the Bellingcat article admitting that the operation of which
Mr. Hamoudi claims to be the victim of took place. In any event, if the case
had been considered by the Strasbourg Court, it would have found that the
specific and consistent account by Mr. Hamoudi, partially corroborated by
OLAF’s findings and the Bellingcat article, constitutes prima facie evidence,
thereby triggering a shift in the burden of proof. The Court of Justice would be justified in
following the Strasbourg case law and reaching this conclusion. This is also so
because of the widely documented information on the general context and the
myriad of contradictory statements about the events by Frontex outside the
proceedings.
Refuting the
appellant’s claims
Frontex stressed at
the hearing that it could not “live up” to substantiating, refuting or
corroborating the prima facie evidence of the appellant. It was in a situation
of an impossible proof. This is wholly unconvincing. Frontex could simply review
its records or surveillance footage to determine whether, at the relevant date
and time, its surveillance aircrafts were operating over the area where the
unlawful pushback of Mr. Hamoudi occurred. Frontex conducted two active
operations in the region and is best placed to substantiate or refute the
appellant’s claims. With an explicit to mandate to provide support to Greece in
the Aegean Sea fully aware of Greece’s shady practices and under an explicit
mandate to safeguard fundamental rights of individuals in distress at sea as
per Article 80 (2) and 80 (3) of the Frontex Regulation
it was monitoring the situation.
Conclusion
Enabling the EU
Courts to focus on the legal assessment of alleged fundamental rights
violations in such cases by providing as much factual information as possible
serves the interests of all parties involved—including the Court itself.
Frontex has faced
significant criticism over alleged pushback practices in the Aegean Sea,
raising serious concerns about compliance with its fundamental rights
obligations. It is in the Agency’s interest to be as transparent as possible,
not to seek to win a litigation such as the Hamoudi case at all costs
but to assist the court in reaching the correct result. By doing so, Frontex
can contribute to reinforcing trust in the EU Agency’s commitment to human
rights and accountability.
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