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.

WS and Others v Frontex before the Grand Chamber: Ensuring Meaningful Protection of Fundamental Rights in Forced Returns by an EU Agency acting as a Safety-Net

 

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:
Влада на Република Северна Македонија via Wikimedia Commons

 

Introduction

On 4 February 2025 the Grand Chamber held a hearing on the appeal in Case C-679/23 P against the General Court (GC)’s Judgment of 6 September 2023 in case WS and Others v. Frontex, Case T- 600/21. The case's high significance lies in the fact that the Court of Justice looks the first time at Frontex's liability in the context for illegal return operations. This article provides a brief summary of the case and comments on some of the issues discussed at the hearing. (For a summary of the arguments at the hearing, see here).

Despite high expectations by many regarding the Grand Chamber’s ruling in this case, the Court may only be asked to rule pursuant to Article 256 TFEU and Article 58 of the Statute of the Court of Justice on whether the GC committed an error of law. Thus, the judicial review might be limited in this respect.

Given the issues discussed at the hearing, it is expected that the Court of Justice will clarify Frontex’s obligations in joint return operations based on the circumstances of the individual case on appeal. Whether it will extend its reasoning beyond this case remains to be seen. It would certainly be desirable if the Court elaborated on Frontex's own fundamental rights obligations, which are distinct from Member States' obligations, also to counter the tendency of the Agency to negate its own obligations, as was noticeable at the hearing. One can certainly expect that Advocate General Ćapeta will offer interesting insights in her Opinion, which she is set to deliver in June 2025.

As a factual background the applicants, a Syrian Kurdish refugee family with four children, arrived on the Greek island of Milos in October 2016 by boat with the intention of claiming asylum. Even though they made their intention clear to apply for asylum just six days later, they were deported by flight to Turkey in a joint return operation conducted by Greece and Frontex. Because of the fear of being returned to Syria by the Turkish authorities (para. 59 of the GC’s judgment), the family decided not to stay in Turkey but to proceed to Iraq, where they reside to this day.

The applicants filed a claim for compensation, alleging that Frontex had violated its obligations under the then-applicable Frontex Regulation (the 2016 Frontex Regulation) and several fundamental rights during the return operation. Specifically, they claimed Frontex failed to comply with its obligations related, inter alia, to the principle of non-refoulement, the right to asylum and the prohibition of collective expulsion.

Admissibility of the action: Article 340.2 TFEU

Any arguable claim that fundamental rights have been violated should be subject to an effective judicial remedy, and that is in these types of cases a claim for compensation under Article 340.2 TFEU (see  more here). Despite Frontex’s arguments, the GC rightly deemed the claim admissible, which some view as a significant success in itself, as it sets a precedent for the admissibility of similar actions.

The GC’s (implicit) conclusion regarding Frontex’s verification duties

The GC dismissed the action finding that Frontex's role in joint return operations was to provide technical and operational support to EU Member States and not to enter the merits of return decisions or decide on applications for asylum (paras. 64 and 65 of the GC’s judgment). 

The GC’s holding that Frontex cannot assess the merits of return decisions or decide on asylum applications is beside the point. By failing to distinguish between a return decision and its implementation, the GC ignored Frontex’s role in the implementation of return decisions. The implementation of returns clearly falls within Frontex’s competence, and this was precisely what the appellants were challenging before the GC. That is why the GC’s findings in this regard constitute an error in law as pleaded by the appellants (see the appeal).

An EU Agency implementing member states’ return decisions

The 2016 Frontex Regulation requires the EU agency to provide necessary assistance and coordinate or organize joint return operations together with member states. With this role come specific responsibilities, which arise undoubtedly not only after a joint return operation, but also before and during such an operation, especially in monitoring and ensuring that individuals like the Syrian refugee family in question are protected from fundamental rights violations.

The 2016 Frontex Regulation specifically requires the agency to ensure respect for fundamental rights, including the principle of non-refoulement, throughout the operation. Its monitoring role in relation to return operations is outlined in Article 28(7) of the 2016 Frontex Regulation, which obligates Frontex to report any fundamental rights concerns to the participating Member States. Additionally, Article 34(2) states that Frontex must ensure no person is returned to a country where they could face refoulement. As an EU agency, it must follow the EU Charter of Fundamental Rights. The EU Return Directive further sets out rules on enforcing return decisions, including postponing a return if there is a risk of refoulement.

Independent verification duties to ensure protection of fundamental rights

From the questions asked it appears that the Court will take the view – quite correctly - that Frontex is, at a minimum, under an obligation to check if it is assisting, organising or coordinating the return of actual returnees, i.e. persons who are subject to written return decisions. It cannot simply trust the national authorities and turn a blind eye to who is on the returnees list.

In its own submissions at the hearing, Frontex acknowledged a duty to verify cases where the national documentation, including written return decisions, contains a logical or a manifest error.

The absence of enforceable return decisions in this case is not disputed by Frontex. In this respect, Frontex failed to check the relevant national paperwork. A Syrian-Kurdish family was returned where they came from, Turkey, despite having expressed their intention to seek asylum in Greece - a fact that a proper verification of the national paperwork would have likely revealed.

Frontex should have identified a clear error on the returnees list, as there were sufficient indications that the Syrian-Kurdish family, including four children, had been wrongly included. The presence of this family on the return flight—after arriving in Greece by boat and being scheduled for return a few days thereafter to Southeast Turkey without apparently having filed an asylum claim—should have raised concerns or suspicion about their possible wrongful inclusion on the list of returnees.

Regarding the risk of refoulement, the GC acknowledged that the appellants feared "being returned to Syria by the Turkish authorities" (para. 68 of the GC’s judgment). In this context, the GC failed to rule that Frontex is obligated to assess whether individuals like the Syrian-Kurdish family risk being transferred to a third country where they may face refoulement or violations of their fundamental rights. Frontex has a duty to prevent any form of refoulement in line with its own fundamental rights obligations as clearly set out in the Frontex Regulation. 

The GC failed to rule that Frontex could and should have enquired, for example by contacting the Greek authorities why this family was on the return flight to Turkey and whether their placement on the list was justified. The Agency’s failure to do so constitutes an unlawful act which the GC failed to establish.

Frontex submitted at the hearing that a few years after the events in question, a new IT tool was introduced by Frontex, requiring Member States to confirm several key conditions before a return operation can proceed. These conditions include: (a) the existence of an individual implementable final return decision, (b) the exhaustion of all judicial remedies, (c) confirmation that the returnee has not applied for asylum. To fulfil in a meaningful way its fundamental rights obligations, Frontex must actively verify this information or, at the very least, implement robust mechanisms to ensure that these criteria are met before facilitating or participating in return operations. It failed to do so in the present case.

Consequently, the GC’s conclusion that Frontex had no obligations regarding the return flight of the family to verify, to the very least, whether the return operation involved actual returnees (see the appeal) constitutes an error of law.

Sufficiently direct causal link

The GC concluded that Frontex could not be held liable for any damages related to the return operation, as the appellants had not adduced evidence of a sufficiently direct causal link between the damage invoked and the alleged conduct of Frontex (para.71 of the GC’s judgment).

The appellants correctly contended that if Frontex had fulfilled its obligations regarding the protection of fundamental rights in the context of joint operations, they would not have been unlawfully returned to Turkey. Instead, they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the time.

In the appeal, the appellants argued that the GC erred in law by concluding that the necessary causal link between Frontex’s actions and omissions and the harm suffered was broken by the appellants’ own "choices." In this regard it is not arguable that it was their choice to stay in Turkey in a rented house for some time, and then to abandon it and go to Iraq. On the contrary the damage they suffered was a direct result of Frontex’s failures. If the Agency had properly checked the relevant material the appellants would not have been wrongful returned to Turkey and incurred the harm they suffered.

The appellants contend that the harm they suffered was a foreseeable result of Frontex’s failure to fulfil its obligations to uphold fundamental rights during return operations and to prevent individuals from being disembarked in violation of the non-refoulement principle. At the hearing, the question was raised as to whether it was foreseeable that the family, out of fear, would not remain in South-East Turkey but instead flee to Iraq. It has been convincingly argued here  ‘it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (i.e., indirect) refoulement to their countries of origin.’  In this case, the damage related to Iraq did not result from an unpredictable intervening event; rather, it was arguably reasonably foreseeable that the Syrian-Kurdish family out of fear to be sent back to Syria by the Turkish authorities would flee to Iraq. If the Court agrees with this, the damage related to Iraq was a direct and foreseeable consequence of Frontex’s unlawful conduct and the GC erred in law by failing to establish this.

Conclusion

The Grand Chamber’s ruling will be highly significant in defining Frontex’s role in protecting fundamental rights during return operations. Judicial scrutiny will enhance accountability and drive further reform, even if the Court must limit its ruling to the specific circumstances of this case. Both member states and Frontex have important obligations to meet when they conduct joint return operations. In this respect, as Eleanor Sharpston, Counsel for the appellants, stated in her concluding remarks: Frontex provides “a safety net that, […] preserves the honour of the European Union as an entity that values and respects the rule of law and fundamental rights.”

 

Frontex accountability: an impervious path

 

 

Laura Salzano, PhD student in Constitutional Law, Barcelona University

 

Since its creation in 2004, Frontex’ role and responsibilities have been some of the most debated issues among EU and human rights observers. Reasons for such attention are many: misuse of power, lack of transparency and non-cooperative behavior are just some of the allegations addressed to the Agency by professionals as policy experts and lawyers, academia, activists and NGOs.

 

Such criticisms are not only exogenous to the EU: the Frontex Consultative Forum (established in 2012, it assists the Executive Director and the Management Board in fundamental rights matters) expressed serious concerns in its annual reports for many consecutive years. It disclosed that the Management Board undermined the Fundamental Right Officer’s independence by appointing a former Adviser of the Executive Director as Fundamental Rights Officer ad interim; more seriously, it denounced the Agency’s reluctance to provide the needed human resources to the Fundamental Rights Office and to limit the Forum’s access of information. Also, it brought the ineffectiveness of the Individual Complaint Mechanism to the public’s attention: in 2018 only 3 incidents for alleged violations and 10 complaints were reported: an incredibly low number considering the 1500 officers deployed along the EU’s external borders.

 

Despite the almost total absence of incident reporting, the media revealed many instances in which the Agency’s officials were implicated in acts of physical violence towards refugees through the use of pepper spray, batons, and of dogs to hunt migrants. These deficiencies on human rights are due to its regulatory framework: while Frontex has been progressively granted a higher degree of power in the management operational tasks, its accountability did not grow accordingly. In fact, its competences and powers were strengthened by the 2016 Regulation and then again in 2019 (as discussed here and here).

 

This latter revision created the first EU uniformed service: the European Border and Coast Guard standing corps. The shift from mere assistance to Member States to operative powers was not accompanied by the setting up of a redress mechanism for violations of human rights. This brought the EU Ombudsman to recommend back in 2013 the establishment of an instrument enabling those whose fundamental rights were breached by Frontex to complain. While no action was immediately taken within the Agency, such recommendation was embedded in the 2016 Regulation and then enhanced in 2019. The current mechanism now provides the possibility of lodging a complaint for violations resulting from actions and omissions (Article 111, para. 2) but, as observed  by the Consultative Forum, it substitutes a proper independent judicial review and therefore does not satisfy the right to an effective remedy as enshrined in Article 47 of the EU Charter of Fundamental Rights. To assess this and other issues (i.e., the independence of the Fundamental Rights Officer) the EU Ombudsman has undertaken a strategic inquiry, still pending.

 

More recently, Frontex has come back under the spotlight of political tensions after the publication of an investigation revealing the Agency’s involvement in push-backs at the Greek-Turkish border. Whereas the notion of “push-backs” is not defined under EU law, it is commonly used to describe the set of actions aimed at pushing back migrants and asylum seekers at borders or immediately beyond them - with the purpose of preventing them to reach the protected frontier - without a proper assessment of their status and rights. Such actions often put migrants' lives at serious risk and raise issues with regard to the principle of non-refoulement, protected at EU level by the Art. 19 of the EU Charter.

 

Such serious events triggered a response from the European Commission which, for the first time, took action to investigate the allegations by calling for an urgent meeting. At the moment though, no concrete action has been undertaken yet and when reporting to European Parliament last December 1st, Frontex’ Executive Director was urged to resign.

 

As said, allegations of push-backs were the main subject of the LIBE Committee’s hearing held on  December 1st. In that occasion, for all the six incidents reported by the media, the Agency denied its involvement using several arguments.

 

The first one lies on the legal interpretation of the prevention of departure. As stated by the Agency, those events reported as illegal pushbacks by the media, could instead be interpreted as interceptions under Regulation 656/2014 (Sea Borders Regulation). According to it, if there is evidence to believe that a vessel is involved in smuggling of migrants, States may, inter alia, warn and order the vessel not to enter and alter its course towards a destination other than the territorial sea. As explained, the Regulation frames two kinds of actions that can be undertaken at borders lawfully: interceptions at sea and search and rescue activities. The issue is quite significant, since these operations take place in a grey and evolving area of the law while having the potential to highly impact migrants' human rights. Despite the fact that lawful and unlawful conducts are separated by a fine line, the European Commission's Schengen Borders Code (SBC) handbook restates which legal safeguards border coast guards should always respect, e.g. allowing anyone in need of international protection to access it. In any case, the European Commission, responding to a specific request from the Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea, clarified that the criteria of the well-known N.D. N.T. case do not apply to the present case. Predictably, it specified that being that judgment related specifically to a land border, it cannot be indiscriminately applied.

 

The second argument concerns competence. As the Director declared, full technical command lies within the host Member State: vessels, airplanes and all the deployed means were subject to the sole command of Greek authorities. On the other hand, the Agency enjoys wide supervisory powers, while Member States retain responsibility for the management of the section of their external borders (Art. 7, Reg. 2019/1896). The Management Board establishes - following a proposal from the Executive Director - technical and operational strategies. Moreover, Frontex liaison officers - who act as representatives of the Agency at borders and monitor and assist Member States in their operation - respond to it, as enshrined in Article 31. Also, Frontex exercises such power by means of the vulnerability assessment (Article 32), aimed at establishing Member States' ability to respond to challenges at external borders. Again, the assessment methodology is decided by the Management Board on a proposal of the Executive Director. Such a complicated picture is made even more difficult since the responsibility is shared between a multitude of public actors, usually involved in border control operations: the Host State (where operations take place); the Participating State(s) (other Member State(s) participating in the operation); Frontex’ standing corps. This directly leads to the unaccountability of the Agency: as illustrated by Prof. Fink, “national courts lack the competence to rule on the legality of Frontex’s conduct”, while the ECHtR has no jurisdiction on the EU and before the ECJ the “judiciary is split between a national level that adjudicates on the legality of national conduct and an EU level that adjudicates on the legality of EU conduct.”

 

The third argumentation revolves around the geopolitical context. There is no doubt that the situation at the Greek-Turkish border is a tense one, primarily due to the known border dispute. It was reported that EU Member States are often threatened by F16 planes of the Turkish military forces - thus raising the need to protect Member States’ security - falling in the framework of hybrid threats. In this case, provision of Article 41 on “critical impact level” applies. In fact, the Executive Director shall recommend any possible action needed to address the criticality. In case of situations requiring urgent actions, the European Parliament shall be informed without delay (Art. 43), while Art. 46 bounds the Executive Director to terminate activities if conditions to conduct them are no longer fulfilled. On the contrary, MEPs were informed only on December 1st. In any case, the issue raised deserves attention: working at EU external borders entails carrying out operations in highly sensitive geopolitical contexts. Nevertheless, according to its Regulation, the Agency is only accountable to the European Parliament and to the Council, surely not fully prepared to deal with external affairs, security and defense - being these the core competences of the EU External Action Service.

 

European Union borders management suffers from a specific vulnerability when it comes to the rule of law. Those whose rights are violated are mostly left with unclear, burdensome and inadequate mechanisms. A necessary starting point would be amending the Regulation to define a clear chain of command to identify anyone involved in the concerned action or omission, from the person who physically carried out the action - or did nothing to avoid it and should have - to the Executive Director. As argued by Prof Fink, only an effective ex post remedy accessible to individuals would close the accountability gap, allowing for damage compensation and a clearer identification of the public liability.

 

Barnard & Peers: chapter 26

JHA4: chapter I:3

Photo credit: Rock Cohen, via Wikimedia Commons

New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

Steve Peers

Introduction

A new EU Regulation, published today in the EU’s Official Journal, sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code, which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

Search and rescue

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding. As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress. Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

Protection and disembarkation rules

On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The core of the new Regulation is Article 4 – the protection against non-refoulement (removal to an unsafe country) and protection of fundamental rights. Article 4(1) states that no-one can be ‘disembarked in, forced to enter, conducted to or otherwise handed over to’ an unsafe country as further defined in the Regulation. Compared to the 2010 Decision, the Commission proposal, and the Council position, the EP successfully insisted on adding the words ‘forced to enter’ and ‘conducted to’, which clearly covers push-backs.

What is an unsafe country? Article 4(1) goes on to define two situations: (a) a serious risk of subjection of the migrant to the death penalty, torture, persecution or other inhuman or degrading treatment; and (b) the migrant’s life or freedom would be threatened on the grounds set out in the Geneva Convention on Refugees (race, religion, nationality, political opinion or membership of a social group), as well as sexual orientation. Also, a ‘chain refoulement’ is banned: a migrant cannot be handed over to a country which is safe in itself, but which would hand the migrant over to an unsafe country.

Compared to the criteria in EU asylum law (the ‘Qualification Directive’), the first category includes two of the grounds concerning the grant of ‘subsidiary protection’ (ie protection for those who do not qualify as refugees under the Geneva Convention): the death penalty and torture or other inhuman or degrading treatment. It does not include the third category, concerning ill-treatment in the event of armed conflict; however, it does include ‘persecution’, without further definition. The second category is identical to Article 33(1) of the Geneva Convention, except that it does not include the exception in Article 33(2) of that Convention for persons posing security threats et al., and it adds the grounds of ‘sexual orientation’ to those referred to in the Convention. However, the CJEU has confirmed that homosexuals can form a ‘particular social group’ under the EU’s Qualification Directive.

The 2010 Decision referred simply to ‘non-refoulement’ without any further explanation in the main text, while the 2013 proposal (and the Council’s position) referred only to the first category of grounds, without the general reference to ‘persecution’. So the EP clearly succeeded in strengthening this provision.

Next, how must an unsafe country be determined? Article 4(2) states that when considering disembarking migrants in a third country, the host Member State (the Member State from which an operation takes place or from which it is launched: Article 2(3)) must ‘take into account the general situation in that third country’, and cannot disembark or otherwise force to enter, conduct to or hand over if the host Member State or other participating Member States ‘are aware or ought to be aware’ that such a State presents such a risk. The EP insisted on adding the references to forcing to enter, conducting to or handing over.

The EP also obtained an amendment further clarifying the sources of information to take into account – a ‘broad range’, including other Member States, EU bodies, agencies and offices and international bodies. The Member States ‘may’ take into account existing agreements and projects carried out using EU funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation specifies that (in accordance with the Hirsi judgment) before disembarking or otherwise conducting, etc the migrants to a third State, taking into account the general situation in that State, the Member States’ units shall ‘use all means’ to identify the migrants, assess their circumstances, inform them of their destination and give them an opportunity to object on grounds of the non-refoulement rule. These obligations are subject to an override in the interests of the safety of all the persons involved (see Article 3).

The operational plan must ‘where necessary’ provide for medical staff, interpreters, legal advisers and other relevant experts on shore. Also, the annual reports which Frontex must provide on the application of the Regulation must include ‘further details’ on cases of disembarkation in third States, as regards the application of the relevant criteria. These provisions were insisted upon by the EP, in particular the reference to ‘legal advisers’, but there is ‘wiggle room’ conferred by the words ‘where necessary’ and ‘use all means’.

There are also limits on the exchange of personal data with third countries, an obligation to respect human dignity, and rules on training of staff.

The protection rules cannot be separated from the rules on disembarkation of migrants. According to Article 10, there are three scenarios. First, if migrants are intercepted in the territorial sea or contiguous zone (the waters adjacent to the territorial sea, according to international law: see the definition in Article 2(13)) of a Member State, then they must be disembarked in the coastal Member State, ie the Member State in whose territorial waters or contiguous zone the operation takes place (definition in Article 2(14)). But this is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.

Secondly, if migrants are intercepted in the high seas, they may be disembarked in the country from which they are assumed to have departed, subject to the non-refoulement rules in the Regulation. If that is not possible, then disembarkation ‘shall’ take place in the host Member State.

Thirdly, in the event of a search and rescue, the migrants shall be disembarked in a place of safety. If that is not possible, then they shall be disembarked in the host Member State.

These provisions raise many important questions. First of all, it should have been clearly specified that the general non-refoulement rule takes priority over any possibility of disembarkation in a third State.

Secondly, as correctly noted in the preamble to the Regulation, the EU’s asylum legislation applies to anyone in the territorial waters of the EU. This means that, in accordance with that legislation, once an asylum application is made in the territorial waters, the asylum applicant cannot be removed to a third State before there is a decision on the asylum application in accordance with that legislation, save for some limited exceptions not relevant here. The obvious corollary of this is that asylum-seekers who make their application in the territorial waters must be disembarked on the territory of the Member State concerned, since it is unlikely that it will be practical to keep them on board a ship for the entire duration of a full asylum procedure. However, the main text of the Regulation does not reflect the wording of this legislation, since it provides for the possibility of persons intercepted or rescued in the territorial waters to be removed to third countries.

Thirdly, when migrants are disembarked on the territory of a Member State, an awkward question could arise: is that Member State safe? While the specific non-refoulement rules in Article 4(2) and (3) refer to the safety of third countries, the general rule in Article 4(1) refers to countries in general. The European Court of Human Rights and the EU’s Court of Justice have already both concluded that Greece in effect fails the standard set out in Article 4, and litigation in some Member States is also challenging the safety of Italy. So there could be a clash between the non-refoulement rule and the obligation to disembark in a Member State which is the host State, coastal State or place of safety, or in the territorial waters of which the applications were made.

Fourthly, as for those intercepted or rescued in the high seas or the contiguous zone (the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States), the bulk of the EU’s asylum legislation does not apply. However, the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects, as noted above (the omission of persons fleeing conflict, for instance).

Having said that, EU rules on asylum procedures and reception conditions do not apply to asylum-seekers who are intercepted or rescued in the high seas or the contiguous zone, and in that case the rules in the Regulation would apply. In effect, the rules summarised above provide for a highly simplified process – which might be dubbed the ‘maritime asylum procedure’ – for such cases. As noted above, though, the words ‘where necessary’ and ‘use all means’ arguably give Member States considerable flexibility not to apply these rules fully, and these rules are (understandably) subject to the requirement to give priority to the safety of all persons. This should mean that in the event of a risk to the safety of persons, if the application of the non-refoulement rule has not yet been assessed, the migrants must be taken to a (safe) Member State to avoid prejudicing the outcome of that assessment. Once the migrants enter a Member State’s territorial waters, EU asylum law will apply fully (arguably it applies even if the application was made before the vessel entered those waters; if not, then there is nothing to stop the asylum-seeker making a renewed application for asylum once the vessel is in those waters).

Since most EU asylum law does not apply to the high seas, the EU’s Dublin rules on asylum responsibility do not apply either, and it is an open question whether they would apply where a person made an application on the high seas and was then brought to the territorial waters of a Member State while the application was being considered. In order to limit somewhat the huge impact of these Dublin rules on the coastal Mediterranean States, EU Member States could agree between themselves on new rules for responsibility for asylum-seekers who make their application on the high seas. If necessary, this could take the form of an amendment to the Dublin rules, added to the proposed new amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies (recital 7) that a shipmaster and crew should not face criminal sanctions for rescuing migrants and bringing them to a place of safety. This provision is welcome, but it would be better if the EU legislation on criminal sanctions for facilitating irregular migration were amended to confirm that there is no criminal liability in such cases.

Accountability of Frontex (and national authorities)

Article 13 of the Regulation, which was inserted at the EP’s insistence, states that Frontex must make annual reports on the application of the Regulation, including on Frontex’s own procedures and information on the application of the Regulation in practice, including ‘detailed information on compliance with fundamental rights and the impact on those rights, and any incidents which may have taken place’. Presumably this means that these reports will have to include full information on where migrants were disembarked and the assessments that were made of the safety of any third countries (and Member States) in each particular case. It would have been better to clarify the extent of these obligations expressly, although any provision on accountability is better than none. The EP also insisted on a recital in the preamble, which repeats text already in the Frontex Regulation regarding Frontex cooperation with third countries. 

When the Frontex Regulation was last amended in 2011, the EP insisted on many new provisions ensuring that Frontex would be complaint with human rights standards, and the application of these new rules has since been examined by the European Ombudsman. Frontex is still refusing to establish an individual complaints procedure for migrants who believe that it has violated the rules binding upon it, on the grounds that it only coordinates Member States’ authorities’ actions, so cannot be held directly responsible for those actions.

While it would be preferable to ensure that individuals could raise complaints that Frontex had not complied with its obligations as regards human rights, it is also true to say that Frontex only coordinates Member States’ authorities’ actions. In any event, those authorities take actions that are not coordinated by Frontex. Given that (as the new Regulation itself implicitly accepts) any control of the EU’s external border, including by means of patrols outside a Member State’s territorial waters, is linked to the application of the EU’s own rules on external border controls, the EU Charter of Rights is applicable to Member States’ control of those borders. And there have been allegations that Member States’ authorities have on some occasions been responsible for push-backs and ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for too long as a ‘lightning rod’ for critics of the EU’s external borders control policy, whereas attention should have focussed more on Member States’ authorities, whether they are being coordinated by Frontex or not. The ‘right to life’ in the European Convention of Human Rights entails, according to the European Court of Human Rights, an obligation to hold an independent investigation into losses of life that have arguably resulted from actions of the authorities. So arguably the EU is under an obligation pursuant to the EU Charter of Fundamental Rights to ensure that its Member States conduct such investigations into losses of life which are linked to the implementation of EU policies, in this case the EU external borders rules. Those authorities should also be held accountable for any alleged push-backs or other ill-treatment of migrants at the external borders.

To that end, the EU should agree upon a general framework for independent investigations into such alleged abuses, with the results of these investigations reported and assessed by the Commission as part of its twice-yearly report on the Schengen system. Furthermore, it is long past time for the Commission to stiffen its backbone and to bring infringement proceedings against Member States where there is sufficient evidence that their authorities are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, as its rules on search and rescue are valuable and its provisions on protection, disembarkation and accountability of Frontex are better than nothing at all. But the complex interplay of the provisions of this Regulation with EU asylum law has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted in the Mediterranean, and the rules on the accountability of Frontex are something of a ‘red herring’ in light of the allegations of serious misconduct in some cases by national authorities. Finally, the Commission’s continued unwillingness to bring infringement proceedings in this area (and in the face of its own documented breaches of other EU immigration and asylum law) is undermining the letter and spirit of the Charter by allowing Member States’ authorities to think that they can violate the Charter with impunity. 

Further reading: Council of Europe Parliamentary Assembly report, June 2014

UNHCR comments on the Commission proposal

Barnard & Peers: chapter 9, chapter 26