Blog post by Isabel Kienzle, PhD candidate at FAU Erlangen-Nuremberg *
Introduction
Pushbacks are difficult to evidence. In broad terms, pushbacks are measures by states that force migrants back at international borders without an individual assessment of their protection needs. Given that pushbacks typically happen on the spot, domestic remedies are not available in most cases. The person concerned can thus apply directly to the European Court of Human Rights (ECtHR or the Court), which has to handle the case without relying on facts established in domestic proceedings. Pushback practices can differ significantly, but most occur covertly, with states denying their practice, and all pushback practices pose evidentiary challenges. Widespread pushback practices include border guards confiscating the phones of migrants or switching off their cameras, as the ECtHR has documented. Some states systematically misrecord statements of migrants asking for asylum. In the proceedings, the ECtHR often faces respondent states that do not submit relevant records, surveillance footage, or photos or videos documenting the events.
In pushback cases, the establishment of facts is particularly relevant. The cases often raise questions of facts rather than questions of law. Just recently, at the beginning of June 2024, the ECtHR held a remarkable Chamber hearing in two pushback cases, G.R.J v. Greece and A.E. v. Greece, that prominently focused on questions of evidence. The ECtHR has different tools at its disposal to improve the establishment of facts in pushback cases. This blog post will spotlight one particular tool: the Court’s competence to request information from states.
Procedural rules for information requests
The ECtHR is not bound to the parties’ submissions. Instead, Article 38 ECHR allows the Court to investigate the facts of a case by its own motion. It is well documented that the Court no longer conducts its own fact-finding missions, given its limited resources and ever-increasing caseload. However, this is not where the ECtHR’s competence ends: The Court can investigate the facts by simply requesting information and documents from the parties. Correspondingly, the parties have a duty to cooperate with the Court, which requires that requested information and documents are provided in their entirety. Article 38 ECHR stipulates the duty to cooperate for states, and Rule 44A of the Rules of Court expands this duty to both parties.
With this in mind, imagine the case of a violent pushback from Greece where the Greek coast guard abandon people on a dinghy drifting at sea and actively throw people in the water. Let us assume that the surviving applicants were unable to take and save pictures or videos. The applicants would not be able to describe the precise location and time of the incidents. Survivors that could bear witness would be very few, and maintaining contact with them for testimonies would be difficult. The Greek Government would deny the incidents altogether. The Court would face applicants raising severe allegations without submitting much evidence. Neither a straightforward dismissal of the case nor an indiscriminate approval of the contested facts would be a good solution for the judges in this serious case.
However, there is an easy solution: the ECtHR could ask Greece for further information on the alleged incidents. It could, for instance, request records of the Coast Guard unit from the particular day, ask for a detailed timeline of their activities, for a list of officers deployed on that day, for photos or videos taken, or for testimonies. Its request would be binding. Greece would be obliged to conform with the request and, in the best case, submit all relevant information and documents. The Court could establish the facts without further complications and then focus on its primary task, the legal assessment of those facts. If Greece failed to submit the documents without sufficient explanation, the ECtHR could find a violation of Article 38 ECHR. In addition, and more importantly, the Court may draw inferences from the failure to submit the requested information when assessing the claims on refoulement or collective expulsion. According to Rule 44C, ‘the Court may draw such inferences as it deems appropriate’ where a party fails to provide requested information. It may, for instance, attribute particular importance to a withheld piece of evidence or consider the state’s submission of facts less credible. Crucially, the ECtHR may consider the provided evidence sufficient to establish a prima facie case and shift the burden of proof to the state.
The practice of information requests in pushback cases
In practice, if the Court requests information, it does so when communicating the case, in conformity with Rule 54(2)(a). However, the ECtHR is rather hesitant to use this tool. We examined communications on HUDOC of 89 pushback and border cases, including pending ones, and found only 16 cases where the Court asked questions about the facts. Eight of these cases concern concluded proceedings. In four of them, the judgment does not mention the issue, making it difficult to assess whether or not the state fulfilled the request. The remaining four tell us that requesting information can be an effective tool: In M.A. and Others v. Lithuania, for instance, the state submitted examples of domestic case law as requested; in Asady and Others v. Slovakia, the state shared relevant documents of the applicants’ expulsion procedure.
A particularly positive example is the case of Akkad v. Turkey. This case concerns a pushback from Turkey to Syria, under the guise of a ‘voluntary return procedure’. The Court asked detailed questions about the facts, and Turkey submitted only parts of the documents to which its statement had referred. The Court could establish that before the applicant signed the papers for the voluntary return, he was handcuffed against his will and transported to the Syrian border. Considering that the government did not submit a second request for voluntary return that the applicant had allegedly signed prior to the transfer, the ECtHR inferred that Turkey’s version of the facts was incorrect. In contrast, in M.A. v. Latvia, the ‘major disagreement’ was whether or not the applicants had applied for asylum. The state did not submit the requested information on asylum claims raised at the border crossing point ‘Indra’, but only refusal-of-entry orders. However, the ECtHR did not draw any inferences from this non-cooperation. Instead, it found no prima facie case to be established and dismissed the case as inadmissible.
Looking at pending applications, one can find some best practice examples of how to ask states for useful information, for instance in M.A. and Others v. Latvia:
The Government are requested to submit all documents pertaining to the applicants’ complaints – their applications to various domestic authorities, any replies and decisions issued by those authorities, transcripts of interviews held with the applicants etc.
However, in most cases, the ECtHR does not ask any questions about the facts. To name an illustrative example, in C.O.C.G. and Others v. Lithuania – a pending pushback case in which the Chamber the case had been allocated to recently relinquished jurisdiction in favour of the Grand Chamber – the Court did not request any information from the state despite expected disputes on the facts. The applicants claim to have asked for asylum but could not submit photo or video evidence to prove their encounter with the authorities. The Lithuanian government will contest that the applicants expressed their wish for asylum. When communicating the case to the state, the Chamber could have requested official records on processed asylum requests in the relevant period and on activities of deployed border guard units at the relevant location – but the Court, once again, missed the opportunity. Thus, while the Grand Chamber should spend its resources on dealing with serious questions affecting the interpretation of the ECHR, in this case, it will have to dilute them by first sorting out evidentiary issues.
Conclusion
Requesting information from states is a practicable and effective tool for the ECtHR to gather evidence in pushback cases. The Court has the legal competence for such requests. Asking for documents does not require additional resources but facilitates establishing facts and even helps to avoid complex evidentiary issues. The Court could and should routinely ask questions relating to the facts when communicating a case with a weak factual basis. Litigators should routinely suggest in their applications that the Court make use of this competence.
Asking the Court to use its tools for collecting evidence is not asking the Court to favour the applicants over the respondent state. On the contrary, enabling the Court to focus on the legal assessment of alleged human rights violations by providing as much information on the facts as possible is in the interest of all parties involved – including the Court itself.
*This blog post is based on research for a co-authored paper, ‘Making Pushback Facts Visible: A Review of Tools within Existing Case Law and the Procedural Framework of the European Court of Human Rights’ (forthcoming). I thank my co-authors, Grażyna Baranowska and Jill Alpes, for their invaluable contributions.
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