Time to ring the Bell: Luxembourg’s Light on Pushbacks, Strasbourg’s Shadow on Pullbacks

On Frontex’s Operational Powers, Allocation of Responsibility for Fundamental Rights Violations and Fragmented Justice

 

By Prof. Jean-Yves Carlier and Dr. Eleonora Frasca, 

Université catholique de Louvain (UCLouvain), members of Equipe droits et migrations (EDEM)

 This is a revised version of extracts from the yearly case law column “Droit européen des migrations”, published in French in the Journal de droit européen, no. 3, March 2026.

Photo credit: Luxofluxo, via Wikimedia commons

1.     The Fragmented Architecture of Accountability in EU Migration Control

The judgments of the Court of Justice of the European Union (CJEU) in Hamoudi v. Frontex (C-136/24 P) and WS and Others v. Frontex (C-679/23 P), together with the decision of inadmissibility in S.S. and Others v. Italy by the European Court of Human Rights (ECtHR), can be read as addressing a common structural problem from two different judicial perspectives: how responsibility for fundamental rights violations is allocated in a system of composite, and externalised border controls. Read together, the Luxembourg rulings on Frontex’s non-contractual liability and Strasbourg’s approach to extraterritorial jurisdiction reveal, on the one hand, a tightening of accountability within the EU legal order and, on the other, a persisting fragmentation of protection under the Convention system. Their juxtaposition reveals an emerging asymmetry between pushbacks and pullbacks and highlights the risk of a fragmented landscape of remedies in a field where operational powers are increasingly shared and strategically displaced.

The CJEU confirmed the centrality of access to the territory of the Union in contemporary EU migration policy by subjecting obstacles to external border crossings to strict judicial review. Overturning decisions by the General Court that absolved the Agency from any responsibility for its border operations (T-136/22 and T-600/21), the Court contends that Frontex may incur in non-contractual liability and must comply with fundamental rights obligations when exercising its powers in border control operations. The two rulings provide interpretative clarifications regarding the conditions for engaging Frontex’s non-contractual liability under Article 340(2) TFEU. Anchoring the Agency’s operational role firmly within the constitutional framework of fundamental rights, the Court redefined the division of responsibility between Frontex and Member States in joint operations (Hamoudi v. Frontex) and partially reshaped the concept of causation, clarifying the link between Frontex’s conduct and alleged pushbacks (WS and Others v. Frontex). In contrast, the Strasbourg Court did not approach joint state responsibility in externally coordinated maritime Search-and-Rescue (SAR) operations involving cooperation with Libya (S.S. and Others v. Italy).

The real challenge in the interpretation of EU migration and asylum law no longer lies in the technical refinement of positive norms. Rather, it stems from the operational choices through which the Union and its Member States implement migration control. In particular, maritime operations and cooperation with EU agencies as well as third countries’ national authorities generate complex legal questions precisely because border control activities are organised (and presented) as technical or operational, rather than as exercises of public authority with distinct legal consequences. Two structural features amplify this complexity. First, Frontex’s operational activities are embedded in a hybrid administrative framework that blurs the boundaries between Union and national competences. Second, joint operations disperse decision-making and execution across multiple actors, including third countries’ migration control authorities. In the context of pushbacks, this model of composite governance waters down the attribution of responsibility where illegal coercive practices occur. In the context of pullbacks, the expansion of controls at and beyond the Union’s external borders – through externalisation techniques – further complicates accountability.

2.     Asylum Seekers’ Vulnerability Requires an Adjustment of the Burden of Proof Regarding the Damage Suffered and Caused by Frontex’s Pushbacks

In the CJEU’s own words in Hamoudi v. Frontex, a pushback operation undermines the effectiveness of judicial protection for asylum seekers who have reached the territory of the Union and it “is characterised by the significant vulnerability of the persons subject to it and by the absence of the identification and personalised treatment of those persons by the authorities” (para 88). Following the Advocate General’s Opinion and on the very basis of the Frontex Regulation, the Court clarifies the division of responsibility between Frontex and the Member States: “while Frontex and the national authorities responsible for border management have a shared responsibility […], Frontex is fully responsible and accountable for any decision it takes and for any activity for which it is solely responsible under that regulation” (para 66).

For the time being, the CJEU has adopted a substantive approach to responsibility attribution, refusing to allow operational powers to serve as Frontex’s procedural shield. The Court recalls that Article 97(4) of the same Regulation “provides – like the second paragraph of Article 340 TFEU, to which it gives a concrete expression – that, in the case of non-contractual liability, Frontex is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its departments or by its staff in the performance of their duties. Consequently, the case-law of the Court relating to that provision of the TFEU is relevant in the present case” (para 67). Next, and most importantly, after reiterating the obligation to compensate any damage, the Court acknowledges “the need to adapt the burden of proof” in respect of that damage, adapting it to the “specific circumstances” of operations conducted by Frontex, even when carried out jointly with a Member State (paras 86 et seq.).

Unequivocally, the judgment is rooted in the constitutional framework of Article 47 of the Charter, inviting the General Court, where necessary, to make use of the exceptional measures of inquiry permitted under its Rules of Procedure “in order to guarantee [effective judicial] protection […] which is fundamental in the European Union as a Union based on the rule of law” (paras 78 and 80–84). This means that Frontex can no longer rely on the complexity of its operational arrangements nor on the intermediation of Member States to escape effective judicial review of the activities for which it is “fully responsible” (para 66). The Agency cannot claim a “de facto immunity” that would hinder “all legal action by victims of a pushback operation against Frontex” (para 105). The “full respect” for the right to an effective remedy requires an “adjustment of the burden of proof,” which, in particular, must allow applicants to limit themselves to “present prima facie evidence that that operation, in which Frontex participated, occurred and that they were present during it” (para 106). In the present case, this may consist of the applicant’s testimony corroborated by a press article concerning the pushback.

The General Court ought to have granted the requests for measures of inquiry and hearings to actively seek the evidence held by Frontex, for example by ordering the Agency to produce documents in its possession. The Court notes that, on the one hand, Frontex is “likely to possess information that is relevant for the purpose of proving the existence of pushbacks” (para 96) and, on the other hand, that that failure to cooperate by Frontex “justif[ied] the General Court’s involvement” (para 148). The standard of proof must necessarily be relaxed, considering the informational asymmetry inherent in situations of pushbacks at the borders. Operational decisions adopted by Frontex must be traceable, and the Agency’s practices – long presented as purely technical – must be acknowledged in their full legal significance (on Frontex’s growing power not matching its fundamental rights responsibility, see G. Raimondo).

3.     On the Reasonableness of Asylum Seekers’ Choices in the Assessment of the Causal Link

The Court further develops the analysis of causation in light of the asylum seekers’ conduct in WS and Others v Frontex (Joint return operation). In its 2023 judgment, the General Court had taken into account numerous factual elements relating to the applicants’ conduct in order to dismiss their claim for damages. However, these elements concerned events subsequent to the refusal of entry into Greek territory and the return to Turkey, such as their departure from Turkey and their settlement in Iraq. According to the General Court, such decisions were autonomous choices, the risks and costs of which the applicants had knowingly assumed. They were, in a sense, rational choices comparable to those made by economic operators in other cases concerning the Union’s non-contractual liability. The General Court, therefore, concluded that the damage resulting from such choices could not be attributed to Frontex’s conduct, in the absence of a sufficiently direct causal link with the Agency’s actions.

At that time, we already believed that this line of reasoning was highly questionable (see our analysis in the Journal de droit européen). It characterised the subsequent conduct of the Syrian asylum seekers as “autonomous choices” and effectively neutralised the prior legal and factual constraints inherent in the asylum context. Access to the territory of the EU is not a strategic option. Without access to the territory, there can be no access to the asylum procedure. Where Frontex, through the actions of its agents – whether alone or in cooperation with those of a Member State –, unlawfully prevents access to the EU territory, those actions constitute a decisive cause of the damage consisting in the impossibility of accessing the refugee status determination procedure. Even if shared with the Member States, there is a responsibility of the Union that cannot be ignored.

Similarly, the CJEU censured the General Court’s flawed causal reasoning. The Court observed that, while an “entirely rational decision-making may be expected of economic operators experienced in the management of risks involved in the exercise of their usual activities […], such rational behaviour cannot be elevated to the rank of a criterion of general application, in particular when natural persons are concerned” (para 155). The applicants’ decision, “although not the only possible response, may be regarded as a reasonable response having regard to all the circumstances characterising that situation” (para 157, emphasis added). Such choices are not capable of breaking any sufficiently direct causal link between the conduct complained of and the alleged damage without first assessing in concreto their reasonableness “in the light of all the circumstances characterising the context in which they were made” (paras 161 and 197).

The Court thus clarifies the method for examining the causal link between alleged violations of fundamental rights committed by Frontex and the damage suffered by asylum seekers following their expulsion from Union territory. To that end, the Court provides a clear reconstruction of the obligations incumbent upon Frontex regarding the protection of fundamental rights, particularly in the context of joint return operations. These obligations include verifying the existence of “written and enforceable return decisions […] for all persons whom a Member State intends to include in such operations” (para 107), in order to ensure compliance with the principle of non-refoulement. Admittedly, the Court specifies that this obligation of verification does not automatically entail the existence of a causal link, the assessment of which “must be undertaken taking into account of all the relevant facts […] and the legal assessments required” (para 112).

Furthermore, given the joint nature of such operations, the fact that Frontex provides “technical and operational” support to Member States does not mean that any alleged violation of the asylum seekers’ fundamental rights would result exclusively from the Member State’s conduct (in this case, Greece), thereby excluding the possibility of engaging Frontex’s liability. In doing so, the Court requires a well-articulated reading of liability arising from the exercise – even in hybrid form – of the Union’s public authority, subject to full and effective judicial review.

The lesson is clear: litigation concerning Frontex cannot constitute exceptional litigation. The more autonomous capacities the Agency possesses, the more it might be held legally accountable for their exercise. Clearly defining the contours of responsibility thus becomes a central issue of the EU administrative and constitutional law. The Court’s judgment reflects a firmer recognition of Frontex’s own obligations regarding fundamental rights protection and a more open approach to causation in joint operations. It stands in clear opposition to the restrictive interpretations of the conditions for engaging the Agency’s non-contractual liability adopted by the General Court in 2023.

4.     On Allocation of Responsibilities for Fundamental Rights Violations and Competences? 

One can only endorse these two Frontex rulings, which hold the EU agency accountable for its actions. That is not to say that assessing their consequences will be straightforward. As the cases have been referred to the General Court following the annulment of its original decisions, the concrete analysis of causation, damage and compensation for the harm suffered remains open. However, it cannot be denied that the Court’s reasoning leads to a certain shared responsibility between the Member States and the EU agency. Could this division of responsibility result in joint and several liability (in solidum) of all the actors for the entirety of the damage? The question is not definitively settled. Advocate General Tamara Ćapeta devoted a fairly extensive analysis to this issue in her Opinion in WS and Others. Limiting herself on this point to examining causation, she nevertheless suggested that “in situations in which both Frontex and Member States share obligations in joint return operations, Frontex can be held liable for damage caused by the breach of such obligations, even if a Member State can be liable in parallel for the same damage” (para 93). Her reasoning drew on a possible analogy with the joint liability of another EU agency, Europol (Kočner v. Europol). In the case of Europol, it might be difficult a posteriori for a person harmed by an abusive alert to determine whether the source was the EU agency or a Member State. In contrast, with Frontex there would be, in a sense, a priori responsibility on the part of each actor – both the State and the Agency – each being fully required to prevent any serious violation of fundamental rights. Both scenarios could lead, in similar fashion, to joint and several liability.

However, the CJEU held that the plea alleging possible joint and several liability was inadmissible on the ground that it had not been raised before the General Court (WS and Others, paras 80–89). Consequently, at least in the cases at issue, it is highly likely that – not least because of the division of competences – separate findings of liability will be made corresponding to each actor’s share of responsibility. This latter scenario could generate complex litigation, leading to parallel proceedings before Luxembourg and Strasbourg. In his commentary on the two judgments, Johan Callewaert highlights their systemic significance for protection under the European Convention on Human Rights (ECHR). The complex cooperative frameworks of a hybrid administration (such as joint operations) create new situations from the ECHR perspective. Certain actions carried out on the territory and under the jurisdiction of Member States, but by EU agencies such as Frontex, result in fragmented Convention protection: “patchwork coverage”. Some actions would remain covered by the Convention when attributable to national authorities, whereas those attributable to EU bodies would escape it and fall instead within the jurisdiction of the EU courts, with the result that the ECtHR would no longer be able to hold a State liable for the entirety of the damage arising from a joint operation. In other words, while the 2025 Frontex case law shed some light – by reducing the grey areas regarding EU liability – it also cast a shadow, as any light does, in this case concerning the extent of damage that the ECtHR may attribute to the responsibility of States. The way out of this paradox would, of course, be the completion of the EU’s accession to the ECHR. Yet that prospect still appears remote.

5.     Non-Justiciability of Human Rights Violations Arising from the Coordination of Search-and-Rescue (SAR) Operations at Sea

While the evolving case law concerning Frontex has led the two European courts – Luxembourg and Strasbourg – to review, concurrently if not jointly, compliance with fundamental rights in pushback operations at the borders, for the time being, so-called pullback operations still escape review by the Strasbourg Court. Even if the ECtHR emphasised that “entering into bilateral agreements on migration with third States has the effect of placing extremely vulnerable individuals at serious risk of infringements of their fundamental rights” (S.S. and Others v. Italy, para 110), such arrangements do not automatically bring those individuals within the jurisdiction of a Contracting State for the purposes of the Convention, thereby limiting access to Strasbourg protection.

The inadmissibility decision delivered in S.S. and Others v. Italy reveals the limits of Convention responsibility in the face of the EU policy of delegating migration control, including maritime control, to third countries. The involvement of EU Member States in SAR operations in the Mediterranean cannot be understood without reference to the central role entrusted, for more than a decade, to the border coast guards of third countries such as Libya or Tunisia. In the absence of an integrated EU SAR programme, the Union and its Member States have progressively externalised the management of SAR obligations, while adopting an increasingly restrictive approach toward humanitarian operations conducted by non-governmental organisations (NGOs). This development has been accompanied by financial, material and operational support to third countries: provision of vessels, training, technical assistance and the establishment of a coordination centre (on this topic see E. Frasca). Although the strengthening of SAR capacities in these countries is officially carried out in the name of saving human lives, it is structurally linked to the objective of preventing irregular Mediterranean crossings into the EU territory.

By relocating such actions, externalisation also makes it possible to shield these practices from scrutiny under the obligations arising from the ECHR. Yet this strategy unfolds in a context marked by interceptions at sea that systematically expose migrants to serious violations of their fundamental rights, including treatment contrary to Articles 2 and 3 of the Convention. Like the cases concerning Frontex before the CJEU, S.S. and Others v. Italy raises the issue of the dilution and segmentation of the exercise of powers and, consequently, of responsibilities in the conduct of SAR operations at sea. The Strasbourg Court confirms that its jurisdiction over extraterritorial actions of Contracting States remains exceptional. To fall within its jurisdiction, such extraterritorial actions require the establishment, in the control exercised over individuals, of a direct link with the respondent State. In this way, a dissociation occurs between factual causation and legal attribution, creating a procedural obstacle that is practically insurmountable (on this topic, see C. Ryngaert). In the present case, the Court held that the financial, logistical and operational support provided by Italy to strengthen the capacities of the Libyan coast guard does not, absent effective control or direct operational direction, amount to sufficiently decisive influence to trigger jurisdiction within the meaning of Article 1 of the Convention. In doing so, it effectively casts a veil of ignorance over any responsibility of a Contracting State under the ECHR. Any notion of indirect, functional, or remote control is rejected, even where the risks faced by the persons “rescued” at sea – only to be returned to Libya and subjected to torture and inhuman treatment that has been widely documented – are fully known.

Conclusion: A Rebuttable Presumption Grounded in Prima Facie Evidence

Rulings on matters of access to the EU territory are likely to become more and more significant, signalling a new focus not only by Member States but also by national courts and, consequently, by the CJEU and the ECtHR, on the control of the Union’s external borders and their heir harmful consequences on asylum seekers. The ECtHR’s inadmissibility decision may be read as consistent, confirming the Court’s settled case law on extraterritorial situations (Banković, Al-Skeini, M.N. v. Belgium). It may also be read as a retreat from an evolutive interpretation of fundamental rights in light of today’s conditions. Indeed, a well-established case law recognises indirect responsibility or secondary accountability (par ricochet) in cases of extradition or refoulement, and this restrictive interpretation of jurisdiction refuses to adapt this case law to the reality and contemporary transformations of migration control. There is a middle ground between the frequently criticised slippery slope of judicial overreach whereby Courts are deemed overly protective and the equally problematic territorial lock that shields fundamental rights violations of a serious nature from scrutiny. The middle ground advocated here may appear modest: a rebuttable presumption grounded in prima facie evidence. However, it is precisely in such narrow interpretative openings that the protection of fundamental rights may evolve, by adapting interpretation to the context – a context marked, on the one hand, by situations of extreme vulnerability and, on the other hand, by elements such as bilateral agreements and conspicuous funding which make it possible to presume a genuine link between the contested acts and a Contracting State. Just as the Luxembourg Court has done with regard to Frontex, the Strasbourg Court would be well advised to accept that prima facie evidence gives rise to a rebuttable presumption (juris tantum) requiring the Contracting State to produce evidence capable of rebutting responsibility through facts and documents that would exonerate it. “There’s a crack in everything. That’s how the light gets in”, sang the poet Leonard Cohen. In the present context, we believe that European courts and judges must now more than ever try to maintain a balance. That crack is the space within existing doctrine, mindful of the rights of the individuals concerned, that allows Courts to remain faithful to their jurisdictional frameworks while adapting to new realities of migration control.

The Chios Incident: Echoes of Pylos Humanitarian Disaster and Greece's Criminalization of Solidarity

 

Georgios Athanasiou, PhD Researcher, University of Antwerp

Photo credit: Julian Lupyan, via Wikimedia Commons

The Chios migrant boat shipwreck of 3 February 2026 exemplifies the acute tensions between Greece’s increasingly securitized border management and its obligations under EU law, the ECHR, and international maritime conventions such as the 1979 Search and Rescue (SAR) Convention. More specifically, off the coast of Chios island, a Hellenic Coast Guard patrol vessel collided with an inflatable boat carrying approximately 39 Afghan nationals, resulting in 15 deaths and 24 injuries, including 11 minors, and cases of miscarriage. All of the deaths were attributed to severe head trauma rather than drowning, per up-to-date autopsy reports, with survivors claim that the coast guard did not offer any prior warning or communication before ramming the migrant boat, contrary to official claims of the migrants’ speedboat initiating contact. Interestingly, the on boat cameras of the patrol vessel had been deactivated.   

This event parallels the 14 June 2023 Pylos shipwreck, Europe’s deadliest maritime migration tragedy, where over 500 lives (mainly Syrian, Pakistani, and Egyptian) were lost after the overcrowded trawler Adriana capsized, allegedly due to Coast Guard towing maneuvers following delayed rescue operation, despite prior distress alerts. The ongoing criminal proceedings in Greece have charged 17 Coast Guard personnel, including the rescue vessel captain, with felony offenses such as endangering lives and contributing to the shipwreck,. This development appears to be part of a systematic attempt to portray the eastern Mediterranean migration route as inherently life-threatening for asylum seekers, thus reflecting a pervasive securitization narrative guiding border policies of the Greek government that overshadows State accountability.

Legal Parallels and Accountability Gaps

From a legal aspect, both incidents implicate Greece’s positive obligations under Article 2 ECHR (right to life), requiring States to safeguard lives within their jurisdiction, including during maritime interceptions, and conduct effective, independent investigations into fatalities. The ECtHR has repeatedly held Greece accountable in analogous cases: in Safi and Others v. Greece, for inadequate protection and probing of a sunk migrant boat; Alkhatib and Others v. Greece, for excessive lethal force lacking “absolute necessity” and deficient regulatory frameworks for Coast Guard firearms use. Such repeated failures in border management operations seem to formulate a consistent pattern of action of the Greek authorities in handling migrant routes, in an attempt to not allow migrants to enter Greek territory/territorial waters. In this sense, although Article 3 ECHR (prohibition of inhuman/degrading treatment) further prohibits collective expulsions or pushbacks, this practice has been deemed systematic by Greek authorities in A.R.E. v. Greece (also see, here).

Under EU law, the Qualification and Asylum Procedures Directives respectively mandate the upholding of the principle of non-refoulement and individual assessments of asylum applications, while Article 4 of Protocol 4 of the ECHR and Article 19 CFR bar collective expulsions. Meanwhile, the SOLAS and SAR Conventions impose duties to render assistance “without delay” to persons in distress, disembarking them to a place of safety, irrespective of nationality or the existence of a right to enter the country. Hence, any form of interception framed as SAR mission cannot justify pushbacks or endangering the lives of migrants.

Greece’s Restrictive Policies and Criminalization of Solidarity

Domestically, this incident aligns with broader migration policy tendencies, as Greece has instrumentalized criminal law in an attempt to restrict migration, rendering irregular entry, stay and exit of the country a felony punishable with up to 5 years of imprisonment coupled with a minimum fine of €5,000 (Law 5226/2025 Government Gazette Α' 154/8.9.2025). Similarly, rejected asylum seekers face administrative fines up to €10,000, as well as up to five-year sentences or electronic ankle monitoring. Hence, the 2025 deportation law, hailed as Europe’s most stringent, essentially attempts to streamline expulsions of “economic migrants,” given that long-term regularization after 7 years of stay in the country is equally abolished.

This framework cannot be dissociated from Greece’s post-2019 migration hardening: escalated border fortifications (Evros 35 km wall), freezing of asylum applications, and systematic pushbacks exceeding 540 incidents between 2020-2022 (also see, here). Hence, high-seas shipwrecks, such as the Chios and Pylos lethal incidents, epitomize how this apparatus practically overrides positive obligations under the ECHR, as well as international humanitarian and maritime law, subordinating the protection of life at sea to national security imperatives.

The Greek Government defends its approach as prevention of illegal entry, invoking safe third country safeguards, especially for migrants arriving from Turkey, yet these yield no derogation from non-refoulement or collective expulsion bans. Hence, the Government’s approach in migration policies embodies a “fortress mentality,” which, coupled with its recent attempts to criminalize solidarity, further sets in danger the lives of migrants attempting to cross the Eastern Mediterranean route. A prominent example of this criminalization tendency include the recent Lesbos case against 24 rescuers, who were acquitted after years on charges, like espionage and smuggling, that carried up to 20-year sentences. Similarly, Norwegian activist Tommy Olsen faced an arrest warrant in February 2026 for documenting pushbacks via Aegean Boat Report, accused of criminal organization. Finally, a February 2026 migration law amendment (Law 5275/2026, Government Gazette Α’ 17/06-02-2026) makes NGO membership an aggravating factor, escalating misdemeanors (e.g., facilitation of stay) to felonies with fines exceeding €100,000, constituting the largest criminalization of solidarity in the EU.

Analysis

It is apparent that the Chios tragedy, when assessed alongside the Pylos shipwreck, does not constitute an isolated operational failure but rather indicative of a structural recalibration of border governance in the Eastern Mediterranean. The shift from the enforcement of search-and-rescue obligations to human rights violations at the EU’s external borders under SAR cover reveals a normative inversion: life-saving obligations are operationalized through a security prism that treats irregular entry primarily as a threat vector rather than a protection trigger.

At the doctrinal level, Article 2 ECHR imposes both substantive and procedural duties on States. More specifically, from a substantive aspect, States shall refrain from unlawful deprivation of life and adopt preventive operational measures where authorities knew or ought to have known of a real and immediate risk. Meanwhile, procedural obligations mandate to conduct prompt, effective, and independent investigations capable of leading to accountability. In both Chios and Pylos, the central legal question is whether Greek authorities fulfilled the due diligence threshold required during maritime interception. The reported deactivation of onboard cameras in Chios and the delayed rescue response in Pylos indicate the State’s unwillingness to comply with these operational standards.

In a similar vein, the 2026 legislative reform represents an internal consolidation of the securitization paradigm. By reclassifying irregular entry and facilitation-related conduct as felonies and elevating NGO affiliation to an aggravating factor, the Greek legal framework operationalizes criminal law as a migration-management instrument, fully adopting a “Crimmigration” approach, that is the convergence of criminal and immigration enforcement logics, as border management framework.

In this sense, the prosecution of humanitarian actors in the Lesbos case and proceedings against figures associated with monitoring networks reinforce a chilling effect on civil society oversight. When accountability mechanisms (NGO monitoring, documentation of pushbacks) are suppressed, the evidentiary architecture for fundamental rights protection is simultaneously weakened. In practical terms, criminalization of solidarity indirectly facilitates impunity.

Greece’s approach cannot be decoupled from the broader EU externalization strategy. Financial and operational support through Frontex, coupled with political endorsement of deterrence metrics (reduced arrivals as “success indicators”), generates structural incentives that privilege interdiction over protection. In this context, it appears that the Eastern Mediterranean has become a testing ground for this hybrid governance model of the EU’s external borders. This primarily includes operational opacity (restricted access, disabled recording systems), normative elasticity (expansive security justifications), and penal reinforcement (domestic felony frameworks). In other words, the legal tension at stake is not merely compliance with international human rights law but the hierarchy of values underpinning EU border management. If border integrity consistently supersedes the core values of life and human dignity, the doctrinal architecture of human rights law is functionally subordinated to security rationales.

Accordingly, the Chios incident should be analyzed not only as a maritime tragedy but as a constitutional stress test for the EU human rights regime. The decisive issue is whether accountability mechanisms, domestic courts, the ECtHR, EU oversight bodies, will be able to effectively recalibrate operational practice toward a life-preserving baseline or tacitly normalize deterrence-driven fundamental rights erosion.

Conclusion

Greece exemplifies a broader European paradigm: a so‑called “success story” for deterrence‑based migration control, yet in reality a humanitarian catastrophe for those seeking protection. The country’s migration policies mirror a wider EU strategy that prioritizes border fortification over human life. Hence, a rights‑first recalibration is urgently required. This entails independent and transparent investigations into all reported maritime incidents, such as the full public release of the Chios and Pylos footage, and unhindered support for NGOs engaged in SAR operations, paired with the domestic decriminalization of humanitarian assistance to migrants. In the absence of these measures, the prevailing doctrine of “prevention at all costs” will perpetuate watery graves, turning the Mediterranean into an open cemetery and rendering the protection of migrants’ fundamental rights mere eulogies in default.

 

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.