Blog Post by Prof. Dr Grażyna Baranowska, Friedrich-Alexander-Universität Erlangen-Nürnberg; and Jill Alpes, Erasmus University Rotterdam and Lebanese American University.
On 8 October 2024, the European Court of Human Rights (ECtHR) passed a pushback judgment, M.A. and Z.R. v Cyprus. Pushbacks are practices in which migrants, including asylum seekers, are forced back over a border, without states assessing their protection needs. In the vast majority of instances, states deny pushbacks and the circumstances in which they occur. In addition, state officers hardly ever issue people subjected to pushbacks with expulsion orders or official confirmation of denial of entry at the border. The judgment in M.A. and Z.R. v Cyprus is important and exceptional because of how the judges recognize pushback facts in this case. Whilst only an exceptional chain of circumstances allowed this case to become visible at the Court, the ECtHR did take the task of examining evidence very seriously. More precisely, the judges recognized an unofficial state practice in the absence of official state documents.
The case was brought by two Syrian asylum seekers who, after having reached Cyprus from Lebanon in 2020 by boat, had subsequently been pushed back by Cypriot coastguard officers. Cyprus did not deny that the pushback had taken place, but contested whether M.A. and Z.R. had asked for asylum and did not want to be returned to Lebanon. In this judgment, the ECtHR confirmed that Cypriot state authorities had not provided any official confirmation of the pushback. However, in April 2021 the ECtHR’s registry had refused to register applications of 26 other persons pushed back during the same incident, because they did not provide such documents. How did M.A. and Z.R. overcome the Court’s bias towards state-produced evidence?
In this blog post we read M.A. and Z.R. v Cyprus in light of findings from our three-year long interdisciplinary research collaboration. In “The Politics of legal facts: The erasure of pushback evidence at the ECtHR” published recently in Law and Social Inquiry, we have identified various ways in which pushback evidence gets erased at both borders and in the court room. With regards to the erasure of pushback evidence in the court room, we identified four ways. First, judges neglect evidence from non-governmental and international organizations. Second, judges assign significantly greater weight to state-produced evidence. Third, judges disregard instances where states misrecord events or fail to provide evidence. Fourth, when confronted with conflicting evidence from two states, judges accord greater weight to evidence from the state whose actions at borders are under scrutiny. In this blog post we demonstrate how the first three ways are relevant for grasping the exceptional nature of the recognition of facts in M.A. and Z.R. v Cyprus.
Neglecting evidence from applicants and non-state actors
In our examination of pushback cases, we found that judges at the ECtHR often neglect evidence from non-governmental and international organizations. However, in M.A. and Z.R. v Cyprus the ECtHR has given them significant space. The judgment dedicates 12 out of 45 pages (paras. 40 – 61) to evidence collected by non-governmental and international organizations, including various UN bodies, the Council of Europe Commissioner for Human Rights, US Department of State and various NGOs, such as Human Rights Watch and Amnesty International. All of the reports invoked by the ECtHR are critical of Cypriot practices.
Importantly, the Court refers to those reports also in its reasoning, for example by invoking the Human Rights Watch reports finding concerning access to asylum procedures in Lebanon (par 85). This is an important development, as in previous pushback judgments, such as ND and NT v Spain, the ECtHR mentioned reports of international organizations, but in the end disregarded it, by putting trust in the version put forward by the state.
Framing only evidence produced by states as “direct” evidence
The second way we identified that the Court erases pushback evidence from the courtroom is by framing only evidence produced by states as “direct” evidence. In our article on evidence in pushback cases, we were struck by how the ECtHR assumes that states produce “direct” evidence, which is superior to supposedly “indirect” evidence produced by migrants themselves and those who observe border practices. This framing reveals a bias toward the credibility of states rather than to people on the move and civil society actors. This assumption is also problematic when considered only through the lens of ECtHR case law, as ECtHR case law clearly reveals that state-produced documents misrepresented realities on the ground.
M.A. and Z.R. v Cyprus is an unusual case in this context, because state evidence presented to the ECtHR was so weak that the Court itself stated that Cypriot authorities had failed “to provide any evidence of its interactions with the applicants” (par 87 and 116). The Court stated that Cyprus did not provide any “direct evidence of the interviews”, and instead provided only “a letter and a very brief statement, both created long after the events in question and for the purposes of the case before the Court” (par 87). This citation shows that the ECtHR does not regard everything produced by the state as direct evidence. At the same time, it does not change the overall underlying assumption, which is the recognition of only state-produced documents as “direct” evidence.
The existence of official recognition of unofficial practices, however, is important to even just get a case registered by the Court. In M.A. and Z.R. v Cyprus, the ECtHR explicitly acknowledged that no state confirmation of the pushback existed. However, at registering stage, the court required exactly such a confirmation from applicants. We know this not from reading the judgment, but from non-registration decisions. In the incident in which M.A. and Z.R. got pushed back, there were overall 28 applications submitted to the ECtHR. Out of those, 26 did not get registered, because “there [was] no official confirmation of the alleged government action having taken place” [letters on file with authors]. The cases of M.A. and Z.R. got registered because they reached out to a relative, who reached out to a lawyer requesting protection measures (interim measures) for them, to not being sent back to Lebanon. While the interim measures were not successful and M.A. and Z.R. were returned to Lebanon, it was enough to register the case and lead to this judgment.
Neglecting misrecordings by states
Thirdly, we have demonstrated in our article how the ECtHR erases pushback evidence by overlooking state misconduct. In M.A. and Z.R. v Cyprus, however, the ECtHR very clearly points out mistakes and which state records are missing (par 84, 87, 104). When states do not provide requested records, the ECtHR expects them to provide plausible explanation for not producing that information. In M.A. and Z.R. v Cyprus, the Court explicitly stated that Cyprus has not done so (par 116). This is a very powerful and important recognition by the ECtHR of Cyprus’s misrecordings.
However, the question that remains is: what would be a plausible explanation for not producing the information? When stating that Cyprus did not provide a plausible explanation, the ECtHR contrasted M.A. and Z.R. v Cyprus with Khlaifia and Others v. Italy (par 116). In this pushback case the contestation also concerned whether an individual assessment was conducted. However, Italian authorities argued that the records of this individual assessment had been destroyed by a fire, which was accepted as a plausible explanation by the ECtHR. This has been criticized by many, including in Judge Serghides’s dissenting opinion to the judgment.
Conclusions
In M.A. and Z.R. v Cyprus the ECtHR has exceptionally recognized pushback facts. By reading the judgment in the light of our article on the politics of legal facts, we were able to point out three key points. Firstly, the judgment stands out by giving significant attention to evidence from non-governmental and international organizations. While it is difficult to assess the extent to which these reports influenced the establishment of facts and the reasoning of the ECtHR, their presence in the judgment makes pushback evidence much more visible in the court room. Secondly, in M.A. and Z.R. v Cyprus, the ECtHR did not regard all documents produced by the state as “direct” evidence. This is a significant finding, as the assumption that state-produced “direct” evidence is superior to “indirect” evidence produced by other actors is highly problematic. However, this finding does not change the overall underlying assumption – namely, the refusal to recognize documents produced by applicants and others as “direct” evidence. Thirdly, in M.A. and Z.R. v Cyprus, the ECtHR clearly pointed out the numerous state misrecordings, which is remarkable in the light of past judgments.
When assessing contested facts in M.A. and Z.R., the ECtHR highlighted the consistency of the statements of the applicant and the inconsistencies of the statements of the state (par 84). In addition, the ECtHR invoked that, being kept in boats at the shores of Cyprus, the applicants had very limited contact with the outside world and little access to facilities to collect evidence (par 83). It is thus the joint circumstances of lack of records of the interviews, inconsistency of the states’ version of facts and the impossibility for the applicants to collect evidence, which allowed this case to overcome the ECtHR bias towards state-produced evidence.
This project has received funding from the European Union’s Horizon 2020 Research and Innovation Programme under the Marie Sklodowska-Curie Grant Agreement no. 101026079. This post also relies on information collected during fieldwork conducted within the context of the Horizon 2020 research project “DISSECT: Evidence in International Human Rights Adjudication,” funded by the European Research Council through an Advanced Grant (no. ERC-AdvG-2018-834044).
Grażyna Baranowska is a Professor of Migration Law and Human Rights at the Friedrich-Alexander-Universität Erlangen-Nürnberg. She is also a member of the UN Working Group on Enforced and Involuntary Disappearances. Formerly, she was leading a Marie Sklodowska-Curie-funded project on Missing Migrants at the Centre for Fundamental Rights at the Hertie School in Berlin.
Jill Alpes is Principal Investigator of “Removal infrastructures of Syrians in Lebanon and Turkey” hosted by the International Institute of Social Studies at Erasmus University Rotterdam and the Institute for Migration Studies at the Lebanese American University. She is also a former member of the ERC-funded DISSECT research group on evidence in international human rights adjudication at the Human Rights Centre at Ghent University.
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