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: Francesco Placco, via Wikimedia
Commons
Introduction
Following the
hearing on 4 February 2025 by the Grand
Chamber on the appeal
of Hamoudi v Frontex in Case C-136/24 against the General
Court (GC)’s Order of 13 December 2023 the Advocate-General rendered his
opinion on 10 April 2025 (‘Opinion’).
As outlined here,
the case of Hamoudi v. Frontex involves a Syrian asylum seeker, Mr. Alaa
Hamoudi, who, claims that on 28 and 29 April 2020 he was a victim of collective
expulsion in the Aegean Sea. In this context, Mr. Hamoudi asserts that while a group
of 22 individuals including himself were at sea, a private surveillance
aircraft, equipped with a camera and operated by the European Border and Coast
Guard Agency (Frontex), flew over
the scene twice. A highly damaging report by the EU Anti-Fraud Office (‘OLAF
report’) on Frontex was made public through an NGO in October 2022 and covered
precisely the period in question — including April 2020 — and confirmed that incidents
of pushbacks occurred under Frontex's watch, involving Frontex surveillance
aircraft in the Aegean Sea.
In an action
for damages before the EU General Court, Mr. Hamoudi requested that he be
compensated by Frontex for the non-material damage suffered due to the
collective expulsion. In his arguments before the General Court Mr. Hamoudi inter
alia asserted that because Frontex surveillance aircraft flew over the
collective expulsion it had specific knowledge of that incident but failed to
report it and take appropriate action as per its mandate (see para. 11 of the Opinion)
The General Court
dismissed the action as manifestly lacking any foundation in law. It found that
Mr. Hamoudi had failed to prove the actual damage he claimed to have suffered.
The evidence adduced by the appellant ‘was manifestly insufficient to
demonstrate conclusively that he was present at and involved in the alleged
incident of 28 and 29 April 2020’ (see paras. 39 and 62 of the Court
Order).
Advocate
General's limited Analysis: Reversal of the Burden of Proof
As requested by the
Court of Justice of the European Union (‘Court of Justice’ or ‘CJEU’) the
Advocate General centred his analysis on a possible reversal of the burden of
proof in relation to the existence of damage in collective expulsion cases.
(para.22 of the Opinion).
In doing so, he looked in detail at the
case-law of the Court of Justice in various areas including discrimination
(paras. 30 to 37 of the Opinion)
and the case law of the European Court of
Human Rights (ECHR) in expulsion cases (paras. 40 to 50).
In his analysis of
the case-law of the ECHR in expulsion cases he considered the recent successful
collective expulsion case of A.R.E.
v Greece in particular ‘instructive’.
Importantly, the
Advocate General referred to the fact that in A.R.E.,
the ECtHR applied its case law on the burden of proof related to secret
detention cases. Once the applicant presents prima facie evidence, the
Court may draw strong adverse inferences from the respondent government’s
failure to disclose essential documents to establish the facts, or failure to
offer a satisfactory and convincing explanation of the alleged events. (paras. 41
to 44 of the Opinion)
In line with the
jurisprudence of the CJEU and ECtHR, the Advocate General rightly emphasizes
that the burden of proof cannot be placed on the claimant to establish facts or
produce evidence that is likely to be exclusively in the possession or control
of the respondent, here Frontex. If any concrete evidence of collective expulsions
exists, it is far more likely to be held by the alleged perpetrator rather than
the victim. (para. 51 of the Opinion)
The Advocate General’s
three conditions
In the Advocate
General’s view, based on the CJEU’s and ECtHR’s case law, the burden of proof
may be reversed in cases like Mr. Hamoudi’s case when three conditions are met.
The FIRST CONDITION:
(see para. 57 of the Opinion)
is that the claimant must present prima facie evidence in support of his
or her claim. If the claimant’s account is inconsistent, incoherent, or if the
claimant lacks credibility, this initial burden is not met, and the case should
be dismissed. Consequently, the reversal of the burden of proof becomes
relevant only once a prima facie case has been established. In this
context, the Advocate General relies in particular on the case law of the
ECtHR, for example as set out in the recent case of G.R.J.
v Greece (see § 179).
As stated here,
from the questions of the judges at the hearing it appears that the Court of
Justice is considering to hold that prima facie evidence had been
presented by Mr. Hamoudi. In any event, the Advocate General correctly opines that
the General Court may have placed the ‘evidentiary bar’ too high in the first
place (para. 64 of the Opinion).
In this context, though, the Advocate General omits that the General Court in
its assessment of the evidence failed to consider the various contradictory
public statements about the events by Frontex outside the proceedings, in
particular when the OLAF
report was made public and crucial general contextual evidence. Such
general contextual evidence was considered in the recent G.R.J.
and A.R.E.
cases by the ECtHR. This evidence led the ECtHR to conclude that there is a
systemic practice of pushbacks in the Aegean See and that the Greek Government
failed to refute the evidence by providing a satisfactory and convincing
alternative explanation (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 access to evidence—specifically, where the claimant faces
significant obstacles in presenting evidence, while the respondent, in this
case Frontex, is in a better or more privileged position to refute the
allegations. Mr. Hamoudi, a vulnerable asylum seeker with his mobile phone
confiscated, lacks the evidence to prove Frontex’s involvement in the events,
whereas the respondent is best placed, in a privileged position to prove
or disprove the allegations (see in more detail under: ‘Presumption of
privileged access must be applicable to Frontex’). There can be no doubt that
the second condition 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 (fundamental) rights protected under EU law while a shift would not
undermine the respondent’s (fundamental) rights under EU law. In Mr. Hamoudi’s
case the failure to shift the burden of proof would render ineffective his
fundamental rights inter alia under Article 19 of the EU Charter of Fundamental Rights
and undermine his right to an effective remedy under Article 47 of the Charter.
The shift would not undermine any (fundamental) right of Frontex under
EU law. On the contrary, by providing evidence to prove or disprove the
allegation, Frontex assists the Court in reaching an accurate outcome (regarding
a public authority’s duty pursuant to Article 24 of the Court’s Statute to
assist the Court in reaching the correct result see more here).
Presumption of
privileged access to evidence not applicable?
Somewhat
surprisingly towards the end of the Advocate General’s Opinion,
he expresses the view that the presumption established in the jurisprudence of
the ECtHR on expulsion cases—namely, that the claimant is at a disadvantage in
presenting evidence while the respondent is in a stronger or more privileged
position to rebut the allegations – may not be applicable to Frontex. The ‘automatic’
shift of the burden of proof, once prima facie evidence has been
presented, allegedly could only be applied when the authorities of a Member
State are involved (paras. 61 and 62 of the Opinion).
This despite the fact that the AG opined earlier in his Opinion
(para. 29) that the differences in the procedures before Strasbourg and the
CJEU are more apparent than they are real.
According to the
Advocate General, actors like Frontex possess more limited powers
compared to the authorities of a Member State, and it was unclear whether—and
to what extent—their actions contribute to the difficulties claimants face in
adducing evidence of their involvement in the events at issue. Due to these limited
powers, it was not clear that they would be in a better or more privileged
position to rebut the claimant’s allegations (para. 62 of the Opinion).
The Advocate
General’s suggestion that Frontex’s actions must have contributed to the
difficulties experienced by the claimants in adducing evidence of their
involvement in the events at issue is misplaced. This is not a requirement
under the case law of the Court of Justice, nor under that of the ECtHR.
According to this case law, it is sufficient to establish the evidentiary
difficulties faced by the applicant and the respondent’s capacity to provide
evidence in rebuttal.
It is wholly irrelevant
whether a Member State may have more authority over certain types of evidence. The issue is not whether Frontex differs from
a Member State in terms of powers over evidence but rather who holds
relevant evidence, and who does not. This must be assessed in casu, e.g. here in relation to Hamoudi and Frontex.
The Agency is not being asked to produce evidence concerning Member States’
actions, but rather evidence regarding its own actions or inactions, and
knowledge, particularly in light of its established presence and two active
joint operations in the region.
At the hearing,
Frontex claimed its hands were tied because it did not have access to evidence
held by the Member State. This is irrelevant, what matters is that it has evidence
in its possession and control that may reveal what the agency did, failed to do,
or knew regarding the alleged collective pushback action on 28 and 29 April
2020 in the Aegean Sea.
Undesirable Consequences
of having to demonstrate Privileged Access to Evidence
If, as the Advocate
General proposes, the burden of proof only shifts when it is first shown that
Frontex is better placed to refute the allegations than a claimant, then in
practice, the burden might never shift. The Court of Justice should firmly reject
this approach.
Accepting that
Frontex is - unlike a Member State - not presumed to have privileged access to
evidence would undermine its positive obligations to protect fundamental rights
of individuals in distress at sea and enable Frontex’s impunity and outright
ignores a textual reading of article 7(4) in line with article 80(2) and 80(3)
of the Frontex
Regulation, which outlines the exclusive positive human rights
responsibilities that Frontex has within the context of joint operations. It
would risk making Frontex’s legal obligations unenforceable. This would also
contradict the Advocate General’s THIRD CONDITION outlined in paragraph 60 of
the Opinion.
Presumption of
privileged access must be applicable to Frontex
Related to Frontex’s
own actions, its own responsibility to comply with its own
fundamental rights obligations as per the Frontex Regulation,
and the harm resulting for claimants, Frontex must be presumed of being in a
better or more privileged position in collective expulsion cases such as
the present one.
The appellant is a
Syrian refugee, pushed back at night, with his mobile phone confiscated and
lacks access to the evidence which shows Frontex’s involvement. Frontex, on the
other hand, operates its own aerial surveillance systems and joint operations
logs and collects video and radar data from its flights. The likelihood that it
possesses or has under its control relevant video surveillance footage and/or
incidents reports, relevant logbooks on surveillance operations is extremely
high which places Frontex in a particularly privileged position with regard to
access to evidence in these types of cases. Moreover, it was established in the
OLAF
report and during the hearing that Frontex was fully aware of the practice
of so-called ghost landings pursued by the Hellenic coast guard and from that
flows the duty within the context of its joint operations to collaborate with
Member State authorities to prevent human rights abuses.
While it is true,
as the Advocate General points out, that the General Court did not examine
Frontex’s involvement in or knowledge of the alleged events of 28 and 29 April
2020, this omission stems from the General Court’s erroneous exclusive focus on
the question of damage to the appellant and whether he was present and affected
by those events. However, this cannot mean that Frontex cannot be regarded as
possessing or having under control the evidence needed to rebut Mr. Hamoudi’s allegations.
(c.f. para. 63 of the Opinion).
The very nature of ghost landings entails that the Hellenic Coastguard is no
longer present at sea.
Accordingly, Frontex
is in the exclusive position and best placed to confirm or deny the prima
facie evidence provided by Mr. Hamoudi regarding the events that took place
at sea, including whether it had a surveillance aircraft with a camera operating
over the area during the collective expulsion of 28 and 29 April 2020 but
failed to report it.
If there is an shift
of the burden of proof based on the available contextual and personal prima
facie evidence, Frontex would not face a probatio diabolica (an impossible
proof). It is also not an unreasonable proof for Frontex to provide: recall
that its access led to the damning report
by OLAF which affirmed its presence on the night of 28-29 April. Frontex is
not asked to prove facts that lie completely outside its sphere of influence
and knowledge (see the case law of the CJEU cited at para. 53 of the Opinion).
To the contrary: its being asked to provide evidence regarding events taking
place within the very area of the joint operations in the region, falling
entirely and exclusively within its mandate.
Conclusion
The Court of
Justice in the present case should accept that the three conditions proposed by
the Advocate General must be met in expulsion cases like this one for the
burden of proof to shift. It should hold that this entails a reversal of the
burden of proof for Frontex when the case concerns its own actions or
inactions.
Contrary to the
Advocate General’s assertion in his Conclusion, the state of the proceedings before
the General Court permits the Court of Justice to assess that the appellant
adduced prima facie evidence (FIRST CONDITION) which does allow for the
burden of proof to shift, as Frontex is in a better and more privileged
position than the applicant to prove or disprove its involvement in, and
knowledge of, the alleged events (see Footnote 96 of the Opinion).
This is not a question for the General Court to determine in proceedings
following a referral back to it (contrary to what the Advocate General proposed
in his Conclusion of his Opinion).
It is well
established that Frontex possesses evidence directly linked to its core (and
exclusive) responsibilities, including the gathering of surveillance data, the
production of incident and operational reports, and the monitoring of
compliance with fundamental rights as per Article 7(4) and 80(3) and 80(4) of
the Frontex
Regulation. This places the agency in a similarly ‘privileged’ evidentiary
position as Member States are in relation to their own responsibilities in this
case.
The Court of
Justice should therefore set aside the order under appeal, hold that the three
conditions for shifting the burden of proof as outlined by the Advocate General
are met in Hamoudi’s case as it would have been the case if the respondent had
been a Member State (see footnote 96 of the Advocate General’s Opinion).
It should refer the case back to the General Court to reassess the matter,
taking into account that the burden of proof has shifted to Frontex.
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