The Binoculars at the Borders of Europe

A mere two months into 2025, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have dealt with no less than 7 cases – of which 5 before the respective Grand Chambers – concerning various types of alleged pushbacks at Europe’s borders. In each of these cases rules of evidence were and remain at the forefront of effective human rights protection. Whereas the CJEU’s Grand Chamber engaged with the question of Frontex liability for contributions to pushbacks and returns in the appeals of WS and others v Frontex (see GC hearing), and Hamoudi v Frontex (see GC hearing), the Strasbourg Court ruled in A.R.E. and G.R.J. both versus Greece on the question of pushbacks at Europe’s southern borders, and held hearings in R.A. v Poland (see GC hearing), H.M.M. v Latvia (see GC hearing) and C.O.C.G. v Lithuania (see GC hearing) on the question of pushbacks and Belarusian instrumentalization of migratory flows at the borders of the respective states.

Each case, to varying degrees, raised crucial questions about proof—specifically, how rules of evidence regarding the burden, standard, and method of proof should be interpreted, implemented, and applied by the courts when confronting novel challenges at the intersection of border management and human rights. This contribution highlights how the defending duty-bearing parties sought to interpret the applicable rules of evidence to evade responsibility. It underscores the fundamental and instrumental role of evidentiary rules in safeguarding substantive human rights—rules that, if not meaningfully interpreted in light of current-day realities and the principle of effectiveness, risk eroding the absolute human rights at the core of the European legal order.

Three evidentiary objections  

Three notable strands of defense surfaced in the written and oral submissions by the implicated states and Frontex, all three of which hinge on the burden, the standard and the method of proof.

In a first preliminary jurisdictional line of defense, virtually all defending parties rejected that human rights applied to the facts at hand or that their respective human rights obligations were triggered. In Hamoudi, the Frontex representatives claimed that it was unclear whether Frontex had been at the scene of the events, noting that they had not been monitoring the situation from afar through their binoculars, as a result of which there was no trigger of their obligations. In R.A., H.M.M. and C.O.C.G., the respective States claimed that the events had taken place on Belarusian territory and thus could not trigger their respective human rights obligations as they did not exercise territorial or extraterritorial control. In G.R.J. the defending state claimed that the events simply hadn’t taken place.

Importantly, in all of these cases, the Applicants faced excessive difficulties in obtaining proof: in Hamoudi, the Applicant claimed to have been subjected to an illegal pushback in the Aegean following a so-called “ghost-landing”, in the middle of the night, by masked unidentifiable persons after having had his cellphone taken away – highly similar to the facts alleged in G.R.J.. In R.A., H.M.M., and C.O.C.G., it was alleged that the individuals had been physically present in the respective State territories but had been pushed back illegally without any form of individualized treatment or registration of their international protection claims. In all of these cases, the duty-bearing authority thus retains exclusive or near exclusive means to adduce evidence capable of (dis-) proving the human rights violations complained of. And yet, the defending parties hold steadfast to the rule that it is for the Applicant to adduce evidence related to the claim. This approach fundamentally ignores the pervasive evidentiary inequality that characterizes border management cases of this sort and the practice of both courts to remedy such procedural inequality.

A second preliminary line of defense concerning admissibility, which resurfaced to varying degrees in G.R.J., A.R.E., Hamoudi, R.A., H.M.M., and C.O.C.G. concerns the victim status of the implicated individuals. While the terminology varies depending on the legal procedure and court before which the applications were lodged, in all of these cases the question arose whether the individuals had sufficiently proven that they were in fact the individuals that had been subjected to human rights violative conduct. The argument that victim status as an admissibility requirement has not been met complements the preceding jurisdictional objection. To deny victim status, the defending parties challenged the probative value of the witness statements and photographic and videographic material (e.g., lacking metadata from WhatsApp transferred pictures) that the applicants did manage to obtain in support of their claims. They also neglected in its entirety the vulnerable state of the individuals, the magnitude of the alleged violation at stake – including risk of loss of life – and the oftentimes practical and physical inability to obtain evidence.

A third line of defense constituted a strawman argument geared towards shifting responsibility to either the applicants in question for their own culpable conduct in giving rise to the facts, or to the instrumentalising third state or smugglers. In R.A., H.M.M., and C.O.C.G. for example, reference was continuously made to regular pathways supposedly accessible to the Applicants. According to this logic, the Applicants were required to disprove that there had been accessible regular routes available to them. If they could not, they are responsible for the situation giving raise to the claims, thereby precluding the application of the non-refoulement principle. This same claim was raised within the context of instrumentalisation of migration by third States and smugglers, according to which the applicants were supposedly aware of the instrumentalist nature of these third parties and sought to contribute to such hybrid threats.

With such arguments, the defending parties seek to manipulate the existing rules on the burden, standard and method of proof, to counterclaim culpable conduct on behalf of the Applicants, adding to the already near impossible burden of proof they have to meet. It is hard to fathom how the applicants could adduce evidence of accessible regular routes if dropped an approximated 60 km away from such a border point as was alleged in R.A., in the middle of a forest between the Polish and Belarusian border without any means of orienting themselves, after an alleged illegal pushback in (see R.A. v Poland and GC hearing). Similarly, how can an individual disprove complicity in a policy of instrumentalisation by Belarus when caught between the Polish-Belarusian border in no-man’s land or complicity in smuggling when caught on an inflatable dinghy in the Mediterranean sea?

Not only do the defending parties argue that the burden of proof should remain with the Applicants – all the practical and legal difficulties notwithstanding. There is a tendency towards increasing that burden, by explicitly and implicitly arguing that the individuals concerned should additionally disprove their own culpable conduct in the instrumentalisation of migratory flows by third actors.

The resilience of the European human rights landscape

Throughout all the proceedings the novelty and uniqueness of the legal dispute was continuously raised. It prompted the question whether the procedures and the rights under the ECHR and EU CFR legal framework can sufficiently accommodate such novel questions, or whether it is necessary to develop new understandings of the relevant rights and new procedures altogether. It may be true that the type and intensity of instrumentalisation or the mode of joint operational conduct between Frontex and EU Member States, or even the assessment of digital evidence may present the respective courts with new challenges in adjudicating disputes within the context of border management. However, such novelties are not of a sort to challenge the substantive rights protection under the Charter and the ECHR. Nor do they require new procedures to be developed to accommodate them.

The ECHR is to be interpreted as a “living instrument” to ensure that its rights are “practical and effective” rather than “theoretical and illusory” . Similarly, the principle of effectiveness in EU law demands that EU rights and instruments – including EU fundamental rights – are interpreted in a manner that gives them full effect (see San Giorgio §14). But to be effective, it is not sufficient that rights give rise to substantive obligations that bind the duty-holder. Rather, such substantive obligations must also be capable of being enforced through legal proceedings in situations where the duty-holder has not abided by the obligations such rights give rise to. Under both regimes, the effectiveness of fundamental – or human – rights is thus determined not only by the enforceability of the substantive obligations such rights give rise to, but also by the burden, standard and method of proof that applies when an individual is seeking to enforce their rights through judicial proceedings.

The importance of rules of evidence in safeguarding the effectiveness of rights becomes painstakingly clear when claimants find themselves in a particularly disadvantaged position vis-à-vis the duty-holding public authority in adducing evidence. This is the case when the evidence of a rights-violations falls (almost) exclusively within the power of the duty-holding authority: the Courts have acknowledged this to be the case in indirect discrimination cases, in sexual assault cases, and in secret detention cases to name a few. And it is equally the case in cases of illegal pushbacks effectuated by unidentifiable persons executed in the middle of the night after having deprived the individuals of any means of recording relevant evidence.

Procedural inequality and tailored rules of evidence

The ECtHR and CJEU have both tailored the rules of evidence in such situations of procedural inequality – that is to say, where the duty-bearing authority holds (almost) exclusive access to or power over the evidence – to ensure that individuals in such situations can make an arguable claim to enforce their rights effectively in court. While the Strasbourg Court typically (partially) reverses the burden of proof (see MH and others   §268-275, ND and NT §85-88; MA and ZR §80-81; A.R.E. §210-211; G.R.J. §176-179) the CJEU – sometimes in tandem with the EU legislator – works with partial burden reversals and even presumptions of proof where the Applicant has provided a prima facie or plausible case of their version of events or the existence and extent of harm (see e.g., Danfoss on equal pay §13; T-Mobile regarding competition law §51-52; W. on product liability §51-55; Kočner on data protection §79). In doing so, both Courts explicitly and implicitly distinguish between the burden of proof on the one hand, and the standard and method of proof on the other hand. The standard of proof and the method of proof relate to how much evidence is needed (the standard) to make a successful claim and in what formats evidence may be adduced (the method). Both relate to the principle of unfettered production and unfettered assessment of evidence that prevails before both courts in adjudicating human rights claims (see here).

Conversely, the burden of proof relates to who must adduce evidence and relates more intimately to the question of procedural equality and fairness, the right to an effective remedy and the rule of law more generally. Simply put: if you do not have access to evidence precisely because of your vulnerable position and thus cannot meet the burden of proof, how then can you ever meet the standard or method of proof and see your rights enforced? For these reasons, both Courts have tailored the burden of proof to ensure that the rights in the ECHR, as well as rights within EU law remain practically and effectively enforceable.

A simple question

While the issues before both courts go well beyond questions of evidence, the question of proof before both Courts is not a complicated one. Partially reversing the burden of proof – contrary to the submissions of many of the defending parties – does not ipso facto open the floodgates for liability claims. Nor does it alter the Courts’ unfettered assessment of evidence, negate the conditions of unlawful conduct, causation, attribution, and within the EU’s action for damages, the condition of damage that would need to cumulatively be met for responsibility to arise. It merely remedies a significant procedural inequality that arises due to the unique nature of the circumstances and consolidates an existing practice for duty-bearing authorities to prove compliance with human rights obligations that are already binding upon them. In turn, this allows for a claimant to pursue effective protection of rights afforded to them under the two foundational human rights instruments in Europe.

If a partial burden reversal in these particular cases does give rise to a floodgate of arguable claims of human rights violative border management, this merely speaks to the questionable state of European border management – questions that fall squarely within the purview of both courts to assess. Quoting Naomi Hart in her closing statement in H.M.M., when external forces seek to undermine the European human rights landscape and the most fundamental of rights enshrined therein, “…the biggest blow to the European legal order would be” if such forces “…led Contracting States to compromise their human rights standards, to renege on the absolute prohibition on torture and ill treatment, to condone sweeping expulsions of asylum seekers. The strongest defense against any such attack, is not to dilute the rights enshrined in the convention but to affirm and uphold them.”. With this in mind, acknowledging the fundamental role of evidence rules in the substantive and effective protection of human rights becomes indispensable.