In order to guarantee the right to effective judicial review, on Thursday 18 December the Court of Justice of the European Union (CJEU) referred to the General Court of the EU a case brought by a Syrian migrant claiming to have been turned back at the Greek maritime border, while the European agency Frontex was patrolling nearby (Case C-136/24 P).
In Greece, Syrian national Alaa Hamoudi contested the General Court’s ruling rejecting his application to have the European Border and Coast Guard Agency (Frontex) condemned for the non-material damage he allegedly suffered in April 2020. He accuses the Greek authorities of forcibly returning him to the Aegean Sea after he disembarked on the Greek island of Samos, even though a plane operating for Frontex was reportedly flying overhead.
In December 2023, as the complainant was unable to demonstrate that he was present at the pushback, the General Court considered his action to be unfounded and did not accede to the complainant’s requests to order Frontex to produce certain documents in its possession (Case T-136/22).
In its judgment, the Court of Justice referred the case back to the General Court, holding that the latter had infringed Mr Hamoudi’s right to effective judicial protection.
It points out that the regulation (2019/1896) establishing Frontex obliges it to respect fundamental rights and the principle of non-refoulement of migrants when carrying out its activities.
According to the CJEU, the right to an effective remedy, guaranteed by the EU Charter of Fundamental Rights (article 47), would be illusory if the victims of a pushback to an area in which Frontex was carrying out operations were required to prove by conclusive evidence that they had been deported and that they had been present when the deportation took place. The very vulnerable situation in which these victims find themselves makes it very difficult for them to gather this evidence, a situation which would confer de facto immunity on Frontex.
Consequently, the European Court considers that the right to effective judicial protection requires the burden of proof to be adjusted. A person in Mr Hamouni’s situation simply has to provide prima facie evidence that a pushback took place, and testimony combined with a press article can constitute such prima facie evidence.
The Court states that, where such prima facie evidence is adduced, the General Court is obliged to hear the case in order to assess whether the pushback is true. It should therefore have taken action to obtain from Frontex all the relevant information available to the agency, as Mr Hamoudi had requested.
To see the judgment of the Court of Justice: https://aeur.eu/f/k4c (Original version in French by Mathieu Bion)