Strasbourg Observers

Expanding exceptions? AA and others v North Macedonia, systematic pushbacks and the fiction of legal pathways

May 30, 2022

By Vera Wriedt

The closure of the Greek-Macedonian border on 8 March 2016 entailed systematic pushbacks. The largest operation occurred on 14-15 March 2016, when more than 1500 refugees were summarily returned from North Macedonia to Greece. The complaint of AA and others v North Macedonia addressed this large-scale pushback operation. However, instead of condemning these pushbacks, the European Court of Human Rights expanded the exception from the prohibition of collective expulsions created in the case of ND and NT v Spain and found the applicants culpable of circumventing legal pathways, ignoring that these were clearly not available in practice. Thereby, the Court reproduces exclusionary reasoning that has shaped the European Convention on Human Rights since its inception.  

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Facts

On 14 March 2016, refugees stuck in the Idomeni camp at the Greek-Macedonian border left in what become known as a ‘March of Hope’, walked for several kilometres, crossed a river and eventually entered North Macedonia (see Moving Europe report). However, upon reaching the village Moin, North Macedonian military forces with weapons kettled the refugees shouting threats and insults. In the evening, soldiers ordered them to board trucks back to the border, where they were coerced to crawl under the fence back to Greece. A smaller group, apprehended before reaching Moin, had to spend the night outside before being forced to return to Idomeni.

A family and several individuals from Syria, Iraq and Afghanistan complained against this treatment to the European Court of Human Rights. They asserted that their summary deportation without an examination of their personal circumstances and without a possibility to oppose these measures violated the prohibition of collective expulsion under article 4 protocol 4 and the right to an effective remedy under article 13 ECHR.

Judgment

In its summary of facts, instead of considering the situation at stake – namely after the closure of legal pathways on 8 March 2016 – the Court addressed at length access to asylum in North Macedonia before that date (§§17 et. seq.). Moreover, the inhuman living conditions in Idomeni were only briefly mentioned (§25), despite their relevance to the article 4 protocol 4 assessment (ND and NT v Spain [GC] §§198-9) and the Court’s preceding judgment in the case of Sh.D. and Others v Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia denouncing the conditions in Idomeni as a violation of the Convention. On admissibility, the Court confirmed that ex post facto proceedings, criminal or civil, do not constitute effective domestic remedies against a collective expulsion (§§68-70). This was the first time in an article 4 protocol 4 case with no article 3 claim attached. On the merits, the Court classified the situation as a collective expulsion (§113) but then applied the ‘own culpable conduct’ exception carved in ND and NT, and excluded a violation of article 4 protocol 4, stating that:

it was in fact the applicants who placed themselves in jeopardy by participating in the illegal entry onto Macedonian territory on 14 March 2016, taking advantage of the group’s large numbers. […] [T]he lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct. Accordingly, the Court considers that there has been no violation of Article 4 of Protocol No. 4 to the Convention.” (§123)

Analysis

‘Own culpable conduct’: from exception to main presumption

In ND and NT, the Grand Chamber had created a new exception to the protection of article 4 protocol 4 for “situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety” (§201). The Court considered that these conditions applied in the case of ND and NT (although violence was perpetrated by the authorities rather than by the claimants) and blamed the applicants for not using legal pathways (despite the substantive evidence showing that these were not available in practice), portraying them as a danger (rather than in danger). The judgment was vividly criticised as a “historical disappointment”, lacking factual basis and clarity, turning the targets of racial profiling into culprits, as well as undermining the essence of the prohibition of collective expulsion and non-refoulement. In addition to critiquing the new test criteria as such, commentators also argued for the exception to remain applicable only in the specific circumstances defined in ND and NT, in order to uphold the Convention as a safeguard against human rights violations at Europe’s borders.

The first Chamber judgments after ND and NT (Moustahi v France; Asady v Slovakia) did not refer to the ‘own culpable conduct’ exception. However, in Asady, three judges expressed that the ‘own culpable conduct’ applicability conditions should have been explicitly considered, precisely in order to exclude them. Their joint dissenting opinion highlighted that the exception, “must be confined to its proper context in order to avoid depriving the right secured by Article 4 of Protocol No. 4 of its very essence” (§7). This was the approach followed in MK v Poland, where the Chamber explicitly excluded the applicability of the exception to cases concerning the denial of access to asylum at border posts (§207).

The two subsequent cases on article 4 protocol 4, Shahzad v Hungary and MH v Croatia, included the limited applicability dictum (Shahzad §59 and MH §294, referring to ND and NT §201). In both cases, the Court did not find that the applicability conditions were fulfilled (Shahzad §61; MH §§295 et. seq.). Nevertheless, it then went on to consider the remainder of the ND and NT exception and ruled that there had been no access to legal entry (Shahzad §64; MH §§297 et. seq.). Its insistence on the access question could have indicated the Court’s willingness to signal to both States an obligation to provide legal pathways.

However, in AA v North Macedonia, the Court extended the exception. Similar to the reasoning in Shahzad, it found that the circumstances differed to those defined in ND and NT (“no use of force”, §114), but went on to “nevertheless proceed to examine whether, by crossing the border irregularly, the applicants circumvented an effective procedure for legal entry” (§114). The Court sidestepped the cumulative prerequisites for applicability, relying solely on the unauthorised character of the border crossing as a sufficient condition. Given the absence of legal entry procedures forcing refugees to travel without authorisation or safety, this interpretation would mean that ‘own culpable conduct’ would no longer be an exception to the prohibition of collective expulsion, but its main application. Furthermore, the Court’s assessment of access to legal routes turns ‘own culpable conduct’ into a presumption that needs to be disproven.

Lack of access to legal routes

The corridor forged in 2015 had temporarily enabled legalised and relatively safe passage from Greece to Northern Europe, but was gradually closed down. Based on a joint governmental decision, the Greek-Macedonian border was closed one week preceding the March of Hope. The EU Heads of State statement on 7 March 2016 announced that the partially state-organised transit had “come to an end”. The following day the border crossings in Idomeni and elsewhere were completely blocked. This decision to close legal pathways is clearly acknowledged in the ECtHR’s judgment itself (AA §7). The people who had previously been able to cross the Greek-Macedonian border found themselves in front of a closed gate, trapped in intolerable conditions. One wonders, who would try an uncertain new route through a river and fields, including a claimant using a wheelchair, if access to authorised entry anywhere along the border had been available? As explained in a video statement by Dayana A., one of the claimants from Syria: “We went with my family and two young children to the March of Hope 2016 because the official border was closed and we had no other way”.

The evidence clearly demonstrates the absence of legal routes at the material time. A UNHCR report recorded that, while the number of crossings and official certifications were high until 7 March 2016, no further entries were registered from 8 March onwards for months. Moreover, the Macedonian Ministry of Internal Affairs itself confirmed that the Macedonian authorities did not permit any legal entries of asylum seekers through official border posts between 2010 and 2020 (video). Even before the border closure, legal entry was not granted through visas at official border posts such as Bogorodica but through the issuance of ‘certificates’ in the Vinojug transit centre in Gevgelija, around 2km away (see MYLA, at 21:30 min). In complete contradiction with the evidence available and even cited by the Court (AA §27 §88), the Chamber nevertheless asserts that “there is nothing in the case file to indicate that it was no longer possible to claim asylum at the border crossing” (§119). The Court’s conclusion is not only a distortion but a complete disregard of the evidence in the case and the reality at the border.

Making the prohibition of collective expulsion theoretical and illusory

The prohibition of collective expulsion was initially drafted to apply to all non-citizens, whichever their reasons, intentions or ways of entering a territory, in order to counteract expulsions without an assessment of individual circumstances. With this judgment, the Court risks turning the ‘own culpable conduct’ exception to article 4 protocol 4 into its main application at European borders, following the rationale that crossing borders without authorisation means that non-citizens forfeit their protection under the prohibition. In determining whether such forfeiture should occur, the Court assesses the existence of genuine and effective access to legal avenues. However, the theoretical existence of a non-implemented legal provision (AA §116), regulation or even simple ministerial circular (ND and NT, §224) appear enough for ‘aliens’ to not even deserve an identification – let alone an individualised examination of their circumstances.

Indeed, the Court excludes the relevance of obstacles arising from the country of departure (ND and NT, §221) which impede refugees from officially exiting a country to approach the border post of the country they seek to enter. If they then cross irregularly – because they have no other choice – they are considered guilty of ‘own culpable conduct’ and stripped off their rights under article 4 protocol 4. Such reasoning renders the prohibition of collective expulsions at European borders wholly theoretical and illusory. Moreover, it does not sit well with article 31 of the Refugee Convention, which implicitly acknowledges that refugees might have no option other than crossing borders without previous authorisation and should therefore not be penalised for it.

The Court’s de facto revoking of the prohibition of collective expulsions might be explained in relation to the current political climate, in which migration functions as a political scapegoat and vessel for expressing racist and dehumanising views. Yet the Convention’s norms were put in place precisely to provide protection from the ruthlessness of a ruling majority.

In this judgment, despite the extensive evidence – from the UN High Commissioner for Human Rights, the Council of Europe’s Special Representative on Migration and Refugees, Human Rights Watch, Amnesty International, Oxfam  and the EU Commission – highlighting that the consequence of the 8 March 2016 border closure was the systematic use of informal and therefore unlawful expulsions by North Macedonia, the Court refuses to acknowledge these summary expulsions as inherently in violation of the Convention (§122). The raison d’être for ‘pushbacks’ is to circumvent all legal and regulatory frameworks which limit state actions at borders. Yet in this judgment, instead of condemning these practices, Strasbourg adopts Orwellian state-used vocabulary, designating lawless measures as “preventions of irregular border crossings” (§28). As if at European borders, acting in accordance with the law was the sole obligation of refugees, and not that of states.

With such judgments, the ECtHR not only steps away from its mandate, but also undermines the efforts of other human rights institutions. Two days after the judgment, the Council of Europe’s Commissioner for Human Rights published a 64-page document of recommendations, urging member states to end push-backs and respect the European Convention on Human Rights, showing how ill-fitted the Court’s jurisprudence has become to human rights protection at Europe’s land borders. The Commissioner’s work follows that of other inter-State institutions, such as the Council of Europe’s Parliamentary Assembly, the Council of Europe’s Committee for the Prevention of Torture, the EU Fundamental Rights Agency and the UN Committee on the Rights of the Child.

No-one is illegal

The term ‘illegal’ is repeated 51 times throughout the judgment. However, it is not paired with the word pushback (which was at the heart of the complaint but only receives four mentions). Instead, the focus shifts to “waves of illegal migrants” (§75), “en masse illegal crossing” (§97), “illegal aliens” (§97), “groups of illegal migrants” (§98), etcetera. The Court repeats the State’s coupling of ‘illegal’ and ‘migrant’, although this expression has been rejected in a 1975 UN General Assembly Resolution, as well as more recent guidelines by numerous institutions such as the Council of Europe Parliamentary Assembly, the European Parliament, OHCHR and the CoE Commissioner for Human Rights for its dangerous linkage between migrants and criminality. Moreover, the connection to the phenomenological language of ‘waves’ plays into dehumanising and racist notions of an overwhelming mass to be contained and controlled. The Court should have condemned this framing rather than condone it through the ‘own-culpable conduct’ exception and its underlying narrative of “large numbers” which “disrupt” and “endanger” public order, turning protection-seekers into threats. This treatment is in stark contrast to the support for groups arriving from Ukraine, showing that human rights can be upheld while painfully reminding us that they are not applied to all.

The ‘own culpable conduct’ exception blames and punishes refugees for a situation created by European border policies. If anyone, European states and the ECtHR should be accused of culpable conduct, for failing to uphold the Convention, and instead instituting systematic pushbacks and structural racism at Europe’s borders. Culpability extends not only to current conduct, but also historical culpability for colonial exploitation and its vestiges. The exclusions from access to rights created in ND and NT and expanded in AA and others v Macedonia are reminiscent of the colonial clause in the European Convention, which restricted the applicability of human rights in colonial territories.

Conclusion

The ‘own culpable conduct’ exception undermines the essence of the prohibition of collective expulsion, because it treats those returned as an undesirable mass rather than as individuals whose claims should be heard and addressed. In AA, the Court completely disregards the clear evidence demonstrating the lack of access to legal routes across the border. Instead, it turns victims into culprits. This failure to condemn pushbacks is alarming. As highlighted by Nour A., one of the claimants, in reaction to the judgment: “If they say it’s right to do that to humans – then what is right?”.

Acknowledgments: I would like to thank Hanaa Hakiki and Carsten Gericke for their valuable input and comments.

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