A Sound Legal Argument, but the Wrong Medium? Reflections on S.S. and Others v. Italy and the Limits of Strategic Litigation

 

Paolo Biondi

Photo credit: Gzen92, via Wikimedia Commons

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Abstract

The June 2025 S.S. and Others v. Italy judgment marked a missed opportunity—and a cautionary tale. Although the applicants advanced a legally coherent theory grounded in SAR, SOLAS, UNCLOS, and Strasbourg precedent, their case depended on a weak factual matrix. As a result, the ECtHR declined jurisdiction. However, shortly before, an analogous incident occurred where Rome MRCC expressly instructed Libya to intercept—while sidelining Sea‑Watch. This scenario presented stronger grounds for Strasbourg jurisdiction as Rome’s decision directly determined which vessel rescued (or rejected) migrants, causing their return. Such instructions, with knowledge of their likely outcome, implicate in a more clear-cut case Italy in Libya-run refoulement. Strategically, the lesson is clear, doctrine requires vehicles. The wrong case risks irrelevance. In border externalisation litigation, doctrinal ambition must be rooted in unambiguous control and causation.

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I am grateful to Prof. Steve Peers, Royal Holloway, University of London and Dr. Miles Jackson, University of Oxford for their insightful comments on an earlier draft of this blog post.

 

On 12 June 2025, the European Court of Human Rights (ECtHR) delivered its much-anticipated decision in S.S. and Others v. Italy (henceforth S.S.), declaring the application inadmissible. The case had raised fundamental questions about the responsibility of European States in orchestrating or outsourcing maritime interceptions to third countries. More broadly, it tested the outer limits of extraterritorial jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) in the context of so-called “pullback” operations to Libya.

Much of the academic (here and here) and advocacy community has responded with disappointment. Yet, I believe this case offers a unique opportunity for reflection on whether this particular case was fit for purpose. That is, whether the litigation strategy—however sophisticated doctrinally—aligned with the Court’s existing standards and practices for establishing jurisdiction.

In this piece, I argue that S.S. may have had sound legal arguments but the wrong case. The judgment reflects, at least in part, a mismatch between an ambitious theory of control and a fact pattern too attenuated to support the weight placed on it. This matters not only for assessing S.S., but also for the design of future cases seeking to challenge externalised border controls.

 

The Legal Frame: Jurisdiction under Article 1 ECHR

The applicants in S.S. were twelve survivors of a fatal 2017 maritime incident involving a migrant boat in distress off the Libyan coast. On 6 November 2017, the Rome Maritime Rescue Coordination Centre (MRCC) received a distress call from the vessel. It subsequently shared the coordinates with vessels in the area, including the Libyan Coastguard vessel Ras Jadir, which assumed command of the operation. While the NGO Sea-Watch 3 ultimately rescued 59 persons and brought them to Italy, 47 others were intercepted and returned to Libya. At least 20 people died. The applicants included ten survivors who were brought to Italy and two who were forcibly returned to Libya, where they allegedly suffered ill-treatment in detention (See events reconstruction by Forensic Architecture).

The core question before the Court was whether Italy’s involvement in the rescue coordination—particularly its initial coordination of the Search and Rescue (SAR) case—was sufficient to establish jurisdiction ratione personae under Article 1 ECHR. The Court held that it was not.

Recalling its well-established position that the Convention applies primarily within the territory of the Contracting States, the Court reiterated the exceptional nature of extraterritorial jurisdiction (Banković and Others v. Belgium, § 61; Al-Skeini and Others v. the United Kingdom, § 132). The two main bases recognised in the case law remain: (1) effective control over territory and (2) authority and control over individuals (Medvedyev and Others v. France, § 67; Hirsi Jamaa and Others v. Italy, § 74). The Court explicitly declined to rely on the two additional grounds acknowledged in M.N. and Others v. Belgium—namely, the exercise of public powers abroad and the establishment of procedural jurisdiction through investigative or operational obligations (see S.S., § 80, departing from M.N., §§ 104–107). It also implicitly reaffirmed M.N.’s rejection of a broader “cause-and-effect” theory of jurisdiction, according to which a State’s decisions with extraterritorial consequences might suffice to trigger Article 1 jurisdiction (see M.N., §§ 113–124).

In S.S., the Court found that Italy neither exercised territorial control in Libya nor personal control over the applicants. It focused in particular on the autonomy of the Libyan Coastguard: the Ras Jadir acted independently and did not respond to requests from other vessels or from an Italian navy helicopter to coordinate rescue efforts (§§ 100–102). The applicants’ contention that Italy’s initiation of SAR procedures and instruction to Libya amounted to a form of control was dismissed as unsupported by the Court’s case law (§ 104).

 

The Core Problem: A Weak Factual Matrix

The legal theory advanced by the applicants was not implausible. Drawing on Hirsi Jamaa, Al-Skeini, and Güzelyurtlu and Others v. Cyprus and Turkey, the case sought to extend jurisdiction to what might be termed “functional control”—a form of indirect authority exercised through coordination, operational influence, and outsourcing. It invited the Court to engage with the reality of modern border governance, one where responsibility is fragmented and delegated, yet consequences remain deadly.

However, the factual platform on which this theory rested was thin. Most of the applicants were rescued by Sea-Watch and disembarked in Italy. Only two were subjected to return to Libya. Even for these individuals, the direct link between Italian conduct and the harm suffered was difficult to trace. There was no physical custody, no boarding of an Italian vessel, and no clear-cut operational command over the rescuing actors.

Moreover, the Court's decision-making reflects a deep concern for preserving its doctrinal boundary lines. By declining to accept SAR coordination as a basis for jurisdiction, the Court implicitly reaffirmed a preference for factual control over persons, not merely over procedures or outcomes. As it stated, “the mere fact that the search and rescue procedure was initiated by the Rome MRCC cannot have resulted in bringing the applicants under the jurisdiction of the Italian State” (S.S., § 106). This formalism was foreseeable, given that an alternative outcome could result even in more reticence to coordinate SAR operations in the Mediterranean Sea.

 

A Stronger Case Was Possible

A more promising case took place months before, again involving Sea-Watch. In that later incident, the Sea-Watch 3 vessel on 10 May 2017 was first to arrive at the distress scene and was better equipped to carry out the rescue and to be the on-site coordinator. However, the Rome MRCC allegedly instructed the Libyan Coastguard to assume “on-scene command” while instructing the NGO to remain on stand-by. Following this, the Ras Jadir carried out the interception and returned the individuals to Libya.

From a jurisdictional perspective, this scenario could be significantly stronger. First, there is clear operational decision-making by Italian authorities that directly determined the outcome. Unlike S.S., where Italy informed all vessels and watched the case unfold while leaving it open to who would intervene not managing to keep under control the Libyan vessels involved, here Italy made the intentional and decisive choice of who would perform the rescue and who would not.

Second, there was a safer alternative actively excluded: Sea-Watch was on site and willing to perform the rescue and disembarkation in a place of safety. The Italian instruction, allegedly, effectively foreclosed a lawful and rights-respecting option, leading to a foreseeable violation of Article 3 ECHR.

Third, the concept of jurisdiction over persons can be more easily satisfied here. As in Hirsi Jamaa, where control over persons was exercised on the high seas by physically transferring migrants to Libyan authorities, this later case involved a chain of operational command (transfer of competence) that links Italy’s decision to the individuals’ fate. I have already argued at that time that this form of indirect operational control—particularly when paired with Italy's logistical and technical support to the Libyan Coastguard (which is much less relevant)—supports a finding of jurisdiction and even complicity under international law. Gauci, in a similar vein, has underlined that when a State issues instructions to third-country agents with full knowledge of foreseeable consequences, a jurisdictional link should be inferred, if not presumed.

If events were confirmed, this incident did differ materially from S.S. in one key respect, the degree of control exercised by Italian authorities. The Rome MRCC gave binding (not mere initial coordination) orders and handed over the case and people to the Libyans. At the same time, the MRCC had a better option (Sea-Watch) and the latter was more in line with standard SAR rules as Sea-Watch arrived first and was better equipped. The Libyan crew acted on these orders, and the outcome (return to Libya) was the direct result of decisions taken by Italian authorities. Sea-Watch this time was not left to decide whether to act or not but instead put on stand-by. Thus, a jurisdictional link ratione personae could arguably be established under Article 1 ECHR, following the reasoning of Hirsi Jamaa (exercised continuous and exclusive functional control) and even Güzelyurtlu on extraterritorial procedural obligations (the failure to act appropriately in the presence of options that prevents the realisation of Convention rights).

While S.S. invited the Court to make a doctrinal giant leap, this other case would have allowed it to apply existing doctrine to a novel but concrete scenario without the need even of using the complex legal arguments related to Italy’s material assistance and cooperation with Libya that distracted the Court from the core facts of the case.

 

 

Strategic Litigation and the Importance of the Right Vehicle

Strategic litigation often seeks to provoke legal development by advancing compelling cases that expose systemic injustices. But as the ECtHR’s decision in S.S. shows, doctrinal innovation is unlikely to occur unless supported by a compelling and carefully selected case. This raises important ethical considerations: while cause lawyers and civil society organisations may be driven by broader goals of legal change, they must ensure that the individual applicants are not treated merely as vehicles for test cases—particularly where the factual matrix is weak, the personal costs are high, and a negative ruling may entrench restrictive doctrines. In some situations, it may be ethically preferable not to bring a claim with limited chances of success, even if it aligns with a broader strategy, out of respect for the claimants’ rights, expectations, and wellbeing.

Besides the choice of case, the S.S. arguments appears to have overfocused on abstract structural control (Italy’s coordination role, SAR authority, NAURAS), rather than clear factual chains of causation that could demonstrate how Italy’s decisions determined the applicants’ fate. The strategy leaned heavily on the “public powers” doctrine and the notion of procedural jurisdiction (from M.N.), which had never been firmly accepted in Strasbourg jurisprudence. In doing so, it may have underplayed the more pragmatic narrative: that Italy chose to allow Libya to act in its stead in that specific moment, despite having a safer alternative (Sea-Watch). In hindsight, the case in S.S. also suffered from overreliance on structural arguments (e.g. Italy’s funding, training, and equipping of Libya’s Coastguard) while under developing more important individualised factual narratives demonstrating Italy’s control over the applicants, and an ambitious framing that leaned heavily on underdeveloped doctrines like procedural jurisdiction, which the Court has historically been reluctant to accept outside of investigative contexts (H.F. and Others v. France, § 195).

The inclusion of copious material from UN agencies, International Maritime Organisation (IMO), Medicines Sans Frontiers (MSF), and Forensic Oceanography was impressive in breadth, but possibly overwhelmed the Court without connecting every piece back to personal jurisdiction over the applicants. The applicants’ case risked being “over-lawyered”—strong on structural critique, but weaker on the concrete “why this engages jurisdiction here and now”.

This does not diminish the value of the case as advocacy. But for Strasbourg litigation—particularly in the sensitive domain of migration control—the Court has shown itself to be doctrinally cautious and highly fact-dependent. To trigger jurisdiction under Article 1, applicants must be able to show that the respondent State exercised direct, operational control over them in a way that materially affected their rights.

 

Beyond Strasbourg: Other Legal Avenues

The Court in S.S. briefly acknowledged that other international legal frameworks may govern rescue coordination and refoulement at sea (S.S., § 87). These include obligations under the International Convention for the Safety of Life at Sea (SOLAS) and the United Nations Convention on the Law of the Sea (UNCLOS), and customary international law. The limitations of Article 1 ECHR jurisdiction in this context may signal the need to litigate such “outsourced” responsibility in other fora. One pending example is Case T-136/23 – Sea-Watch v Frontex before the Court of Justice of the European Union (CJEU), which challenges the EU agency’s alleged role in facilitating interceptions by the Libyan Coastguard. There, unlike S.S., applicants invoke direct documentary evidence of Frontex’s aerial surveillance data being used to support pullbacks in a systematic way. While the facts of the case are not publicly disclosed yet, it most likely concerns the case of 30 July 2021 incident, in which a migrant boat was intercepted and returned to Libya after being detected by a Frontex surveillance drone operating within the Maltese SAR zone. This alternative litigation strategy—using a different legal regime and possibly a stronger evidentiary trail—may prove more effective in establishing responsibility and ensuring accountability. It reinforces the central theme of this piece: that strategic litigation must align legal argument, jurisdictional doctrine, and a compelling factual substrate.

 

Another alternative forum for litigation is the UN Human Rights Committee (HRC). In fact, through its decision in A.S. and Others v. Italy (Communication No. 3042/2017), the Committee already accepted once a functional understanding of jurisdiction in a strikingly similar context. The HRC reasoned that Italy had established jurisdiction when its MRCC received a distress call and continued operational involvement, had a naval asset in close proximity and had legal obligations under maritime law and consequently created a “special relationship of dependency” between the individuals on board and Italian authorities (see A.S. and Others, paras 7.5–7.8, citing HRC Gen. Comm. 36). They held that this dependency, coupled with Italy’s operational decision-making, was sufficient to trigger obligations under the International Covenant on Civil and Political Rights (ICCPR)—including non-refoulement—despite the absence of physical custody as per Hirsi.

The ECtHR’s dismissal of such reasoning in S.S. (see § 80) thus highlights a significant divergence between ECHR and the International Covenant on Civil and Political Rights (ICCPR) jurisprudence. That said, I would argue that in A.S. and Others, the facts reveal a higher degree of control exercised by the Italian authorities compared to the S.S. case. This underscores the importance of assessing each case on its own merits, as jurisdictional findings depend on the specific circumstances and evidence presented and less on more academic discourse.

These alternative fora underscore that accountability for outsourced border practices is not foreclosed—only displaced. While the ECtHR may adopt a narrow interpretation of jurisdiction, other institutions, such as the EU courts and the Human Rights Committee, have demonstrated greater openness to recognising functional forms of control. For strategic litigators, this means diversifying venues and tailoring claims to the doctrinal terrain of each forum.

 

Conclusion: A Missed Opportunity, and a Lesson for the Future

While the S.S. judgment may be considered disappointing by some, part of the problem lies in the litigation strategy itself. S.S. is a reminder that strategic litigation must be strategic. The cause may be just. The legal theory may be sound. The political climate may be urgent. But if the factual matrix does not lend itself to a clear jurisdictional finding, the case will falter.

In contrast, other emerging cases—where the Rome MRCC more directly excludes European rescue actors and instructs Libyan authorities to intervene—offer a firmer and more evidentiary-rich basis for establishing jurisdiction. These scenarios may provide the ECtHR with an opportunity to revisit the issues left unresolved in S.S., and to do so through doctrinal continuity rather than rupture. However, it is important to bear in mind that jurisdictional determinations remain case-specific. Recognition of functional jurisdiction in one case does not automatically imply the same outcome in others. That said, courts may be encouraged to draw broader conclusions—such as identifying a minimum threshold of degree of control necessary to trigger jurisdiction in such cases—as they did in Hirsi Jamaa.

S.S. also illustrates a broader truth: when one door closes, others may still be ajar. As the pending Frontex case and the A.S. and Others v. Italy ruling before the UN Human Rights Committee show, different legal regimes may be more receptive to the realities of functional control at sea. Strategic litigation must therefore be both doctrinally agile and forum-sensitive—matching facts not just to law, but to the institutions most likely to listen. Yet whatever the forum of choice, the lesson remains: a sound legal argument must be paired with the right vehicle. Otherwise, as in S.S., the Court may close a door it was not yet ready to open.

Hamoudi v Frontex: Advocate General Norkus’ Opinion - Reversing the Burden of Proof and the Presumption of Frontex’s Privileged Access to Evidence

 

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.

The CJEU ruling in Changu: ‘If I’ve said it once, I’ve said it a thousand times: the Return Directive in conjunction with the Charter of Fundamental Rights does not oblige EU Member States to grant a right to remain to irregularly staying migrants’

 

 

Alan Desmond, University of Leicester

Kevin Fredy Hinterberger, Austrian Federal Chamber of Labour

Photo credit: Luxufluxo, via Wikimedia Commons

 

Introduction

The 2008 Return Directive sets out common standards and procedures for removal of irregularly staying third-country nationals (TCNs) by all EU Member States, except for Ireland and Denmark, and by the four Schengen states outside the EU, namely, Iceland, Liechtenstein, Norway and Switzerland. Since the Directive’s entry into force in January 2009, it has been the subject of an increasing number of important CJEU rulings that clarify the scope and substance of safeguards for TCNs facing removal, ranging from the right to be heard prior to adoption of a return decision, to the maximum period of detention allowed under the Directive.

While the self-evident focus of the Directive is on removal of irregularly staying migrants, Article 6(4) of the Directive provides that, instead of issuing or enforcing a return decision, a state may ‘at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay’ to an irregularly staying TCN. The recent ruling of the CJEU in Case C‑352/23 (Changu) maintains the Court’s stance that no provision of the Return Directive can be interpreted as requiring a member state to grant a residence permit to a TCN staying irregularly on its territory. Article 6(4) has no mandatory character and simply provides Member States with an option ‘to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law, to third-country nationals who are staying illegally on their territory’ (para 67). In this blogpost, however, we argue that Member States have to choose between the return procedure or regularisation. Both options for the Member States are equal in nature to the extent that they have the effect of ending the irregular stay (Hinterberger 2023, pp 98-99).

Background to Case C‑352/23 Changu

The applicant was a TCN who had been residing in Bulgaria since 1996. He had unsuccessfully lodged several applications for international protection and had been the subject of return decisions, the first dated 26 September 2005 and another dated 9 August 2017, which had never been enforced. The CJEU noted that there was no indication that this failure to enforce was due to obstacles to their execution or on health or humanitarian grounds (para 34). During his lengthy residence in Bulgaria the applicant had received different criminal convictions. He claimed that ‘because of the legal vacuum’ surrounding his stay in Bulgaria, ‘he had not had access to either health insurance or medical care’ (para 22).

The most recent rejection of the applicant’s request for international protection, in 2022, was upheld by the Administrative Court in Sofia. The Court in Sofia noted, however, that during the considerable length of his stay in Bulgaria, the applicant did not have any identity document and was often deprived of the necessary safeguards to ensure a dignified standard of living, in breach of Article 14 of the Return Directive. Article 14(1) obliges Member States, inter alia, to take into account certain principles in respect of persons whose return has been postponed, including provision of emergency health care and essential treatment of illness, and attention to special needs in the case of vulnerable persons. The Administrative Court also noted that the Bulgarian authorities had not complied with their obligation under Article 8 of the Return Directive to remove the applicant as soon as possible.

The Administrative Court referred six questions to the CJEU. In this blogpost we will focus on the core question concerning the Return Directive, namely, do Articles 1, 4 and 7 of the Charter of Fundamental Rights of the EU, read in conjunction with the Return Directive, oblige a Member State to grant a right to stay to a long-term irregularly-staying TCN on compelling humanitarian grounds? Hence, our argument in this blogpost draws on EU law combined with human rights law, rather than being solely based on EU law (Hinterberger 2023, pp 102-110).

 

Judgment

The CJEU delivered its judgment on 12 September 2024 without first receiving an Advocate General’s Opinion. In relation to the authorisation in Article 6(4) of the Return Directive, Member States may regularise the stay of an irregularly staying TCN ‘at any moment’. The Court found that this provision ‘does no more than permit Member States to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law’ to irregularly staying TCNs (para 67). This option to regularise is not transformed into an obligation by Articles 1 (dignity), 4 (prohibition of inhuman and degrading treatment) or 7 (right to respect for private and family life) of the EU Charter of Fundamental Rights, regardless of the length of residence of the TCN which the Court found in fact to be ‘irrelevant’ (para 68).

TCNs who have not been removed despite being the subject of a return decision are not, however, left in a situation of rightlessness; in particular, they are still within the scope of EU law. The CJEU noted that Article 14(1)(b) and (d) of the Return Directive requires Member States to ensure as far as possible that as long as removal is postponed, emergency health care and essential treatment of illness are provided, and the special needs of vulnerable persons are taken into account (para 73). Furthermore, the prohibition of inhuman or degrading treatment codified in Article 4 of the Charter obliges Member States to ensure that irregularly staying TCNs do not find themselves in situations prohibited by Article 4. This would arise where, for example, a person wholly dependent on State support endures ‘extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity’ (para 75).

Emerging divergence with the European Court of Human Rights?

The Court’s finding in Changu, while consistent with its earlier case law, arguably diverges with rulings delivered by the European Court of Human Rights (ECtHR) in response to complaints that expulsion of irregularly staying migrants would violate the Article 8 ECHR right to respect for private and family life, which is also enshrined in Article 7 of the Charter. This divergence is evident in two areas. Firstly, the CJEU in Changu found that the length of residence of the applicant in the host state was ‘irrelevant’ to the question whether the Charter may impose an obligation to regularise individuals falling within the scope of the Return Directive. The ECtHR, however, attaches significance to the length of an immigrant’s stay in her host state where she seeks to resist expulsion on the basis it would violate her right to family or private life (Desmond 2021). While this is just one factor amongst many taken into consideration by the ECtHR in its assessment of the proportionality of an expulsion measure, length of residence has been invested with significance in a number of ECtHR rulings finding against states’ decisions to expel irregularly staying migrants, including in the Grand Chamber decision in Jeunesse (2014). Indeed, ‘the extent of the ties in the contracting state’, a proxy for time spent in a state, is one of the staple factors taken into consideration in the ECtHR’s Article 8 expulsion cases involving irregularly staying migrants (Bast et al 2022, pp 198-203).

Secondly, there is no evidence that the Court in Changu drew any negative inferences from the failure to remove the applicant from Bulgaria, despite the imposition of a return decision in 2005, and a second in 2017. This contrasts with the approach of the ECtHR for which the failure of state authorities to act with the requisite promptness has helped to tip the balance in favour of irregularly staying migrants seeking to resist expulsion (Desmond 2021, pp 426-428). Thus, for example, in Nunez (2011) the Court rebuked Norway for allowing almost four years to elapse, after discovering in 2001 the unlawful nature of Mirtha Nunez’s stay, before ordering her expulsion. Similarly, in Kaplan (2014) the Court noted that after Kamran Kaplan’s conviction in December 1999 for aggravated assault the authorities took no specific measures to deport him for about six years. This occasioned the Court to observe, as it had in Nunez, that the expulsion order did not in any real way meet ‘the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures’ (para 95). In discussing the applicant’s 16-year stay in the Netherlands in Jeunesse (2014), the Grand Chamber noted that tolerance of her presence ‘for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands’ (para 116). The passage of so much time in the Netherlands, and the substantial family and private life network facilitated thereby, played a key role in the Grand Chamber’s finding, by 14 votes to three, that expulsion would violate Article 8.

When read in light of this ECtHR line of case law, the finding of the CJEU in Changu that the applicant’s 26-year residence in Bulgaria was ‘irrelevant’ to the question of a right to regularisation is striking.

 

Could the Court have reached a different conclusion in Changu?

The finding of the CJEU in Changu is consistent with the CJEU’s earlier rulings concerning removal under the Return Directive including Mahdi (2014), Abdida (2014) and X (2022). There are, however, at least two complementary arguments that the Court should read the Return Directive as imposing an obligation to regularise irregularly staying TCNs who are not removed, firstly an effectiveness-based argument (Desmond 2020; Desmond 2022, p 147; Hinterberger 2023, pp 102-110) and, secondly, a human rights-based argument (Desmond 2015, pp 75-83; Bast et al 2022, pp 201-203).

The aim of the Return Directive to reduce the presence of irregularly staying migrants in the EU is inferable from the text of the Directive itself. Article 6(1) Return Directive requires Member States to issue a return decision to any irregularly staying TCN, a provision that has been interpreted by the CJEU to mean that Member States must ‘explicitly make provision in their national law for the obligation to leave the national territory in cases of illegal stay’. The aim is also evident in the view of the Commission that the Directive ensures that ‘a person is either legally present in the EU or is issued with a return decision’ (Commission Communication 2011, p 9). More recently, the Commission has referred to the obligation on Member States to take all necessary measures to ensure return (Commission Recommendation 2017, p 24). Both the Commission and the CJEU have repeatedly referred to the need to ensure the effectiveness of the EU’s return policy generally and of the Return Directive in particular. Both are demonstrably lacking in effectiveness, as evidenced by the fact that the majority of irregularly staying migrants are not issued with return decisions and the majority of those who do receive return decisions do not leave the EU (European Parliamentary Research Service 2019; Lutz 2018).

Regularisation, unconditionally open to Member States under Article 6(4), would allow TCNs who are not or cannot be deported to remain in the EU on a legal basis, thereby reducing the ongoing chasm between the number of return decisions issued and the number effected. Embracing regularisation would transform current return policy from one that is grossly ineffective to one which would have a greater likelihood of achieving the aim of lowering the number of irregularly staying migrants in the EU (Desmond 2020, p 6; Hinterberger 2023, p 357).

The human rights-based argument for regularisation is anchored in the belief that human rights considerations require a TCN to be allowed to remain lawfully in the EU instead of being expelled. These considerations include any family life a TCN may have in the host state, with which deportation would inevitably interfere. Similarly, the principle of the best interests of the child might mean that a child migrant should not be expelled to a country where her quality of life would be drastically lower than in the expelling state or that a TCN parent should not be expelled where expulsion would result in a separation of parent and child or removal of a child so as to accompany the deportee parent. Such considerations are, in fact, expressly acknowledged in the Directive and should, as set out in the Preamble, be primary considerations of Member States when implementing the Directive. 

The CJEU has explicitly held in cases such as Mahdi that there is no obligation on Member States under Article 6(4) to regularise TCNs for whom there is no longer a reasonable prospect of removal. Nonetheless, the explicit reference to human rights considerations in the Directive, the CJEU’s increasing reference to the EU Charter for Fundamental Rights and human dignity in its case law on the Directive and the wide concern with ensuring the effectiveness of the Directive and EU return policy all combine to produce a compelling argument for a regularisation obligation under the Return Directive in conjunction with the Charter of Fundamental Rights.

Podchasov v. Russia: the European Court of Human Rights emphasizes the importance of encryption

 

 

 

Mattis van ’t Schip & Frederik Zuiderveen Borgesius*

*Both authors work at the iHub and the Institute for Computing and Information Sciences, Radboud University, The Netherlands - mattis.vantschip[at]ru.nl & frederikzb[at]cs.ru.nl

Photo credit: Gzen92, on wikimedia commons 

 

In a judgment from February 2024 in the case Podchasov v. Russia, the European Court of Human Rights emphasised the role of encryption in protecting the right to privacy. The judgment comes at a time where encryption is central to many legal debates across the world. In this blog post, we summarise the main findings of the Court and add some reflections.

Summary

Podchasov, the applicant in the case, is a user of Telegram. Russia listed Telegram as an ‘internet communication organiser’ in 2017. This registration meant that Telegram, according to Russian law, had to store all its communications data for one year, and the contents of communication data for six months. The obligation concerns all electronic communications (e.g., textual, video, sound) received, transmitted, or processed by internet users. Law enforcement authorities could request access to that data, including access to the decryption key in case communications are encrypted (para 6 of the judgment).

Telegram is a messaging app that users often employ because of its end-to-end encrypted messaging. For instance, Telegram is an important communication channel for Ukrainians to receive updates about the current war. End-to-end encryption means, roughly summarised, that only the sender and the intended recipient can access the content of the encrypted data, in this case Telegram messages.

In July 2017, the Russian Federal Security Service (FSB) required Telegram to disclose data that would allow the FSB to decrypt messages of suspects of ‘terrorism-related’ activities (para 7 of the judgment). Telegram refused. Telegram said that it was impossible to allow the FSB to access encrypted messages without creating a backdoor to their encryption that malicious actors might also use. Because of Telegram’s refusal, a District Court in Moscow ordered the nation-wide blocking of Telegram in Russia. The applicants challenged the disclosure order, but their challenge was dismissed across several Moscow courts. Meanwhile, Telegram remains operational in Russia today. Finally, the applicants lodged their complaint with the European Court of Human Rights. They complained that Russia violated their right to private life in Article 8 of the European Convention on Human Rights (ECHR).

Russia is not a member of the Council of Europe anymore. The Council of Europe stopped Russia’s membership in March 2022, in response to Russia’s invasion of parts of Ukraine. Six months later, on 16 September 2022, Russia ceased to be party to the European Convention on Human Rights. Nevertheless, the Court gives this judgment. The Court says that it has jurisdiction over this case, as the alleged violations occurred before the date that Russia ceased to be a party to the Convention.

The Court quotes several documents that are not directly related to the ECHR, including surveillance case law of the Court of Justice of the European Union, a report on the right to privacy in the digital age by the Office of the United Nations High Commissioner for Human Rights, a statement by Europol and the European Union Agency for Cybersecurity, and an Opinion of the European Data Protection Supervisor (EDPS) and the European Data Protection Board (EDPB).

The surveillance scheme before the European Court of Human Rights resembles earlier Russian surveillance schemes, which the Court held as a violation of providing adequate and sufficient safeguards to protect against indiscriminate breaches of the right to private life in Article 8 ECHR. Earlier holdings thus also apply in the underlying case. Unlike in previous judgments about surveillance in Russia, the Court discusses the role of encryption in protecting the right to private life.

On encryption, the Court holds that the underlying case only concerns the encryption scheme of ‘secret chats’. Telegram offers ‘cloud chats’ by default with ‘custom-built server-client encryption’, but users can also decide to activate ‘secret chats’ which are end-to-end encrypted (para 5 of the judgment). The Court explicitly excludes any considerations of so-called ‘cloud chats’ in the case, as the complaints only concern the ‘secret chats’. The scope of the Court’s holdings is therefore limited to only end-to-end encryption as used for secret chats.

The applicants and several privacy-related civil organisations say that decryption of end-to-end encrypted messages would concern all users of that system, in this case Telegram, as technical experts can never create an encryption backdoor for a specific instance, case, or user. The Russian government did not refute these statements. The Court therefore holds that the Russian authorities interfered with right to private life of Article 8 ECHR. The Court then investigates whether the Russian authorities can justify this violation, for instance because the violation is necessary in a democratic society. The Court analyses encryption in this light.

The Court emphases that encryption contributes to ensuring the enjoyment of the right to private life and other fundamental rights, such as freedom of expression:

[T]he Court observes that international bodies have argued that encryption provides strong technical safeguards against unlawful access to the content of communications and has therefore been widely used as a means of protecting the right to respect for private life and for the privacy of correspondence online. In the digital age, technical solutions for securing and protecting the privacy of electronic communications, including measures for encryption, contribute to ensuring the enjoyment of other fundamental rights, such as freedom of expression (…) (para 76).

The Court adds that encryption is important to secure one’s data and communications:

Encryption, moreover, appears to help citizens and businesses to defend themselves against abuses of information technologies, such as hacking, identity and personal data theft, fraud and the improper disclosure of confidential information. This should be given due consideration when assessing measures which may weaken encryption. (para 76)

The Court observes that legal decryption obligations cannot be specific or limited to certain circumstances: once a messaging provider creates a backdoor, there is a backdoor to all communications on the messaging platform:

Weakening encryption by creating backdoors would apparently make it technically possible to perform routine, general and indiscriminate surveillance of personal electronic communications. Backdoors may also be exploited by criminal networks and would seriously compromise the security of all users’ electronic communications. The Court takes note of the dangers of restricting encryption described by many experts in the field. (par 77)

Based on the above-mentioned arguments, the Court holds that the requirement to decrypt communication messages cannot be ‘regarded as necessary in a democratic society.’ (para 80 of the judgment) The Court concludes that Russia breached the right to private life, protected in article 8 ECHR.

Comments

The Podchasov case follows a long debate about the value of end-to-end encryption in democratic societies globally. As the Court mentions, end-to-end encryption is valuable for privacy as it enables people to communicate in such a way that third parties cannot access the communication. In this context, experts herald end-to-end encryption for its capacity to support, for instance, journalists in performing their work safely, or historically marginalised groups to express themselves freely.

At the same time, some law enforcement agencies consider end-to-end encryption a threat to public safety, as malicious actors can benefit from the privacy provided by secure messaging and similar methods, such as data encryption, too.

For instance, the FBI is in a long battle with Apple over the encryption of iPhones, which several suspects employed to keep their phone information and data private. On each occasion, Apple refused to offer decryption keys or software to the FBI, citing security concerns that can stem from enabling such backdoors.

The battle between security and privacy is, of course, long-standing. Encryption is now central to this debate. The EU Commission recently joined the debate with a proposal for a Child Sexual Abuse Material Regulation (CSAM proposal). Roughly summarised, the proposal would require communication providers (such as Telegram or WhatsApp) to analyse people’s communications to find, block, and report child sexual abuse materials, such as inappropriate pictures. Experts agree that communication providers can only do so if they do not encrypt communications, if they include a type of backdoor, or if they analyse communications on people’s devices before they are encrypted. Experts warn that such on-device analysis can be seen as a kind of backdoor of encrypted communications too. Many civil organisations, technical experts, and academics oppose the CSAM proposal. Opponents of the CSAM proposal can be expected to cite his judgment. 

The European Court of Human Rights is clear about the role of end-to-end encryption for the right to private life. In one paragraph, the Court states that end-to-end encryption is vital to privacy. The Court bases its reasoning partly on an opinion of the European Data Protection Supervisor (EDPS) and the European Data Protection Board (EDPB) which discusses encryption in the context of the above-mentioned CSAM proposal. The Court also refers to responses from civil society organisations, who can present their views to the Court as amici curiae. The Court follows the reasoning of the EDPS, the EDPB, and privacy organisations regarding the conclusion that once encryption is broken, the entire system is no longer secure for its users.

The Court also mentions that encryption is vital to security of users. Consider, for instance, the importance of data protection in the current privacy context. Without adequate data encryption, people cannot be sure that the data they store in, for instance, cloud storage, is accessible to only them. Encryption therefore also helps against hacking, identity fraud, and data theft (para 76 of the judgment).

The Podchasov case is straight-forward: encryption is vital to the protection of the right to privacy. The Court’s clear statements will influence ongoing encryption debates, but the end of the debate is not in sight.

The EU General Court’s judgment in the case of WS and Others v Frontex: human rights violations at EU external borders going unpunished

 

 

Francesca Romana Partipilo, PhD candidate in International Law at Sant'Anna School of Advanced Studies (Pisa) 

 

Photo credit: Rock Cohen, via Wikimedia commons

(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma) 

 

On the 6th of September, the EU General Court dismissed a claim filed by a Syrian family who alleged to have suffered material and non-material damages – consisting in feelings of anguish, fear and suffering – at the hands of Frontex on the occasion of a return operation jointly carried out by the EU agency and the Hellenic Republic on the 20th of October 2016.

 

The case was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having filed a request for international protection. The applicants, arrived on the island of Milos (Greece) on 9 October 2016 and subsequently deported to Turkey, maintained that, if Frontex had not infringed its obligations relating to the protection of fundamental rights in the context of joint operations – in particular the principle of non-refoulement, the right to asylum, the prohibition of collective expulsion, the rights of the child, the prohibition of inhuman and degrading treatment, the right to good administration and to an effective remedy – they would not have been unlawfully returned to Turkey and they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the material time. However, the Luxembourg-based court decided that, since Frontex does not have the competence to assess the merits of return decisions or applications for international protection, the EU agency cannot be held liable for any damage related to the return of refugees to Turkey. As explained by the EU General Court, Member States alone are competent to assess the merits of return decisions and to examine applications for international protection (para. 65). The judges added that, as regards return operations, under Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide technical and operational support to the Member States and not to enter into the merits of return decisions.

 

At first glance, the judgment reveals an argumentative short-circuit. Whilst the examination of asylum applications undeniably falls outside Frontex’s competence, being attributed by EU law to the Member States of the EU, the imperative to respect human rights is contained in Frontex Regulation and in several other documents referring to the agency’s activities, thus representing a legal obligation which is binding on the agency. The fact that Frontex lacks the competence to examine the merits of asylum applications or return decisions does not exempt the EU agency from the respect of migrants’ human rights. As noted by the General Court itself (para. 63), “Regulation 2016/1624, in particular Article 6(3) thereof, provides that [Frontex] shall contribute to the consistent and uniform application of Union law, including the Union acquis concerning fundamental rights, at all external borders”. In addition, the Court stressed that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the [Charter of Fundamental Rights], relevant international law – including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto and obligations on access to international protection, in particular the principle of non-refoulement’.”

 

In addition to the legal instruments binding Frontex to the respect of fundamental rights in its operations, references to human rights have been incorporated into Frontex official documents or press releases since the first years of its operations. For instance, in the annual report for 2008, for the first time, Frontex specified that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management”. Similarly, the 2009 annual report stated that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex”. More recently, the now disgraced former director of Frontex, Fabrice Leggeri, declared that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities”.

 

In the light of these observations, it needs to be noted that Frontex’s actions in the case of WS and Others v Frontex could have resulted in chain (or indirect) refoulement. Considering that Turkey adopts substantial geographical limitations to the definition of refugee contained in the Refugee Convention, the country may not be considered a “safe third country” where asylum claimants can effectively apply for international protection. In fact, at the time of the ratification of the Additional Protocol to the Refugee Convention, in 1968, Turkey opted for a geographical limitation pursuant to Article 1b of the Convention, limiting the scope of the Convention to “persons who have become refugees as a result of events occurring in Europe”. Consequently, only asylum-seekers fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This is confirmed by the circumstance that Turkey does not grant the status of refugees to people fleeing the war in Syria, but only offers them a form of temporary protection, pursuant to the Turkish Law on Foreigners and International Protection.

 

It should be noted that Turkey is a signatory of the European Convention of Human Rights, and thus legally bound by Article 3, prohibiting torture and inhuman or degrading treatment or punishment. As well known, in Soering v The United Kingdom the ECtHR established that, pursuant to Article 3, expulsion to torture is never permitted, even in cases where the returnee is not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have represented a solid legal basis for the protection of the applicants in the case of WS and Others v Frontex, even in the absence of a formal refugee status. Nonetheless, it should also be recalled that, in July 2016, following a failed coup, Turkey had declared a state of emergency and submitted a formal notice of derogation from the ECHR, under Article 15 of the ECHR. Whilst Article 3 ECHR belongs to the list of non-derogable rights, Turkey exploited the state of emergency to introduce a series of amendments to the Law on Foreigners and International Protection, including substantial changes relating to deportation orders and the suspensive effect of appeals against such orders. As a result of the amendments introduced in 2016, a deportation order could be issued at any time to certain applicants/holders of temporary protection (e.g. people suspected of being supporters of a terrorist organization or people who posed a public security threat, in the eyes of the government). For these groups of people, the appeal procedure no longer had a suspensive effect, therefore increasing the risk of refoulement, as noted by Amnesty International. As a consequence, it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (that is indirect) refoulement to their countries of origin. Interestingly, this danger was explicitly acknowledged by the EU General Court itself, in the paragraph of the judgment where the Court noted that applicants feared “being returned to Syria by the Turkish authorities” (para. 68). Finally, it has been repeatedly noted that “procedural safeguards that are in place within the EU are not applicable to Turkey, leading to instances where the guarantees to the right to life and prohibition against torture are denied in direct violation of the principle of non-refoulement in the human rights context”. On the basis of such observations, it is evident that Frontex’s return operation was, at the very least, problematic under both EU and international law.

 

Under a different perspective, the case of WS and Others v Frontex reveals that the responsibility for human rights violations at EU borders may arise as a result of joint actions of States and international organizations (or their agencies). In these instances, interesting questions arise regarding the rules of attribution of conduct, the content and implementation of international responsibility. In the case at hand, while Frontex was under the legal obligation to respect the human rights of asylum-seekers under its jurisdiction and the principle of non-refoulement, Greek authorities had the duty to examine their application for international protection. In fact, as recalled by the European Court of Human Rights in the case Sharifi v. Italy and Greece (appeal no. 16643/09), failure to access the asylum procedure or any other legal remedy within the port of disembarkation constitutes a violation of Article 4 of Protocol no.4 (enshrining the prohibition of collective rejections). In that judgement, the Court highlighted the link between the collective expulsions of the applicants and the fact that they had been prevented from applying for international protection.

 

It should be mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore cannot be held responsible of a violation of its Article 4. Nonetheless, although not formally bound by Protocol no.4, Greece could still be held responsible of a violation of the Asylum Procedures Directive as well as the Dublin Regulation III, requiring Member States to allow asylum-seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece (para. 169).

 

With regard to the issue of shared responsibility, it is interesting to note that, alongside the complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against the Hellenic Republic before the European Court of Human Rights. In this submission, the family alleged the violation of Articles 5(1), (2), and (4) of the European Convention on Human Rights, Article 4, Article 3, and Article 13 taken together with Articles 3 and 5 of the Convention. This choice was probably motivated by the circumstance that – as stated above – Greece has not ratified Protocol No. 4 of the ECHR. Apparently, the submission resulted in a friendly settlement between the family of asylum-seekers and the Hellenic Republic, pursuant to Article 39 of the Convention.

 

In conclusion, whilst human rights activists hoped that the case of WS and Others v Frontex would set an important precedent, the judgment of the General Court is both worrying and discouraging. It appears that Frontex got away – once again – with human rights violations. Since its creation, in fact, Frontex has received a considerable amount of criticism. In particular, observers and legal scholars have raised questions about whether and how core fundamental rights, particularly the right to life, the respect of human dignity, the right to an effective remedy and the right not to be sent back to torture, persecution and inhumane treatment (the principle of non-refoulement), are safeguarded at Europe’s external borders. In June 2021, the ONG Sea Watch published a report where it maintained that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the “competent authorities” […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya”. Regrettably, the case of WS and Others v Frontex will be remembered as just another episode in which the EU agency disregarded its obligations and violated asylum-seekers human rights at European external borders without incurring in legal consequences.