Strasbourg Observers

Evidently unlawful, yet difficult to evidence: M.A. and Z.R. v. Cyprus advances Strasbourg’s case law on pushbacks

October 22, 2024

By Isabel Kienzle and Jonathan Kießling

For the first time, in M.A. and Z.R. v. Cyprus, the ECtHR has decided on a pushback case against Cyprus, addressing the island state’s practice to intercept and return migrants arriving from Lebanon without an individual assessment of their protection needs. As the parties provided conflicting accounts of the incidents and no prior domestic proceedings had taken place, the ECtHR, despite its subsidiary role, had to establish the facts itself. In the judgment at hand, the Court took this task seriously and examined the submitted evidence thoroughly. Its legal assessment reinforces the procedural obligations following from the principle of non-refoulement and the prohibition of collective expulsion, although limiting these findings to asylum seekers.

On Contested and Undisputed Facts

On 6 and 7 September 2020, M.A. and Z.R., two cousins from Syria, travelled from Lebanon to Cyprus on a wooden boat. Once the group of approximately 30 people on board reached Cyprus’ territorial waters, Cypriot coast guards intercepted the boat. The applicants were made to stay on the boat for two days, monitored by a coast patrol vessel standing by, until they were transferred to another ship and brought back to Lebanon. Once, the applicants succeeded to call their relatives in Cyprus, who contacted a lawyer to file a request for interim measures with the ECtHR. They requested the Court to ‘[ask] the Government not to return the applicants to Lebanon […] where they might be refouled to Syria, and [ask] the Government to allow the applicants to enter the Republic of Cyprus so as to claim asylum’ (para. 21). However, once the Court was in the position to decide on the interim measures, the applicants were already on course to Lebanon, where both are currently living.

On various aspects, the parties’ accounts diverge strongly. Following the government’s version of facts, the persons on board received sufficient water and food while being kept on the boat. Allegedly, despite being interviewed individually with the assistance of an interpreter and asked one by one, none wanted to seek asylum in Cyprus. The applicants, on the contrary, claimed that they only received some bread, canned meat and an insufficient amount of water and that they had expressed their wish to seek asylum and objected to their return to Lebanon.

The Court’s Findings

The Chamber of the third section unanimously found violations of Articles 3, 4 of Protocol No. 4 and 13 ECHR. On account of the applicants’ return to Lebanon, Cyprus failed to discharge its procedural obligation under Article 3 ECHR because the applicants were removed from Cyprus without prior assessment of the risks of ill-treatment (para. 95). Additionally, the applicants’ return to Lebanon constituted collective expulsion in violation of Article 4 of Protocol No. 4 ECHR due to the lack of individual decisions, which could not be attributed to the applicants’ own conduct (para. 116-9). As the applicants had no remedies available under Cypriot law by which to raise their complaints under Articles 3 and 4 of Protocol No. 4 ECHR in an effective manner (i.e. with suspensive effect), the Court also found a violation of Article 13 ECHR read in conjunction with these provisions (para. 126).

The ECtHR found a second violation of Article 3 ECHR on account of the applicants’ treatment by Cypriot authorities. During their stay on the boat, they were exposed to summer heat, lacked access to hygiene facilities and received insufficient amounts of food and water. These conditions ‘caused the applicants considerable distress and feelings of humiliation’ while under the control of the authorities (para. 137). Finally, the Court did not find it necessary to examine whether the applicants’ stay on the boat amounted to unlawful detention in violation of Article 5(1) and (4) ECHR (para. 139).

Thorough Engagement with Evidence

The Court’s legal analysis essentially hinges on whether the applicants were asylum seekers. As the judgment clearly separates the establishment of facts from legal conclusions (contrast, for instance, Khlaifia and Others v. Italy (GC), where the Grand Chamber blurred questions of facts and questions of law), our contribution will follow suit.

Like the applicants in other pushback complaints against Cyprus that did not even get registered by the ECtHR, M.A. and Z.R. faced structural difficulties in evidencing their asylum requests. They could not submit any direct evidence but their personal statements. However, the Court found that they had provided prima facie evidence and accordingly shifted the burden of proof to the state (para. 86). While this approach is well established (surprisingly, the judgment does not cite case law in this regard), in M.H. v. Croatia, another pushback case, the ECtHR has received criticism for labelling strong direct evidence as prima facie and covertly requiring a higher standard of proof. Here, by contrast, prima facie is indeed the standard of proof the applicants had met when they made their account plausible.

Assessing the prima facie threshold, the Court acknowledged the applicants’ restricted possibilities to collect evidence, the consistency of their version of facts, and various reports on a general practice corroborating their account (para. 83-5). As proof of the applicants’ limited contact with the outside world, the Court inventively invoked their unsuccessful request for interim measures, in particular considering that they only reached a representative via relatives and were unable to submit complete information (para. 83). The Court made further use of the request to assess the consistency of the applicants’ account, and found it unconvincing that the applicants, ‘having asked the Court to apply interim measures allowing them to apply for asylum in Cyprus, would for no apparent reason abandon their efforts and not express their wish to apply for asylum’ (para. 87).

Cyprus failed to refute the applicants’ account. As is common practice, the state barely submitted documents. Although ‘the Government, […] unlike the applicants, was able to collect evidence’, neither records of the interview nor a statement from the interpreter were provided (para. 87). The evidence submitted, a letter and a brief statement by police officers (para. 66), was created long after the events and for the purpose of the ECtHR proceedings. The Court concluded that Cyprus had ‘not provided any evidence of the authorities’ interactions with the applicants at the time of the events’ (para 87). The submitted general statistics on arrivals and asylum requests (para. 67) proved inconsistent and did not convince the Court that the applicants were afforded access to an asylum procedure (para. 88).  Contrasting negative examples from prior case law come to mind, for instance the Grand Chamber’s inconsistent reasoning on registered asylum claims in N.D. and N.T. v. Spain (GC) (para. 213-20), or the distorting reference to the number of asylum requests recorded before the closure of the Balkan route in A.A. v. North Macedonia (para. 117-22) despite the case taking place later.

However, the enthusiastic reader should factor in two aspects facilitating this sound establishment of facts. First, the parties agreed that the incidents had happened. Proving a pushback is much more difficult where states deny any encounter with the applicants, for instance in M.H. v. Croatia. Instead, the parties only disagreed on whether the applicants had asked for asylum. Second, Cyprus admitted that no interview records existed and did not provide ‘any plausible explanation for not producing’ information (para. 116). This made findings easier for the Court than in cases where states submit incorrect records (compare M.K. v. Poland, para. 174 on Poland’s systemic practice of misrepresenting asylum seekers’ statements) or assert that existing documents got lost (compare Khlaifia and Others, para. 246).

Procedural Obligations under Article 3 ECHR

Turning to the legal assessment under Article 3 ECHR as regards the applicants’ return to Lebanon without an individual examination, the Court applied the general principles developed in Ilias and Ahmed v. Hungary (GC) (para. 124-41). This line of case law understands the principle of non-refoulement as a procedural obligation: where a State removes an asylum seeker to a third country without examining their asylum request on the merits, it has a procedural duty to examine ‘the relevant conditions in the third country concerned and, in particular, the accessibility and reliability of its asylum system’ (Ilias and Ahmed, para. 139). Consequently, the ECtHR limits itself to assessing whether the expelling state has complied with this procedural obligation. Unlike in other refoulement cases, the Court does not itself examine the substantive issue under Article 3 ECHR, i.e. the real risk of ill-treatment upon expulsion to the third country directly, or following chain-refoulement to the country of origin. Even the arguability of the applicants’ claim under Article 3 ECHR is irrelevant (Ilias and Ahmed, para. 147). This approach poses an instance of proceduralisation. Whether the Court considers the third country to be ‘safe’ is irrelevant. Instead, it must be satisfied with the expelling state’s assessment of this issue.

However, procedural obligations under Article 3 ECHR do not apply to every person who presents themselves at a border. This is strikingly illustrated by the partial decision on admissibility in N.D. and N.T., where the Court brushed aside the complaint under Article 3 ECHR, despite no examination having occurred prior to expulsion. The principles above apply to the removal of asylum seekers only. Thus, it is the expressed wish to seek asylum that triggers the procedural obligations under Article 3 ECHR. In M.A. and Z.R., the entire legal assessment hinged on the fact that the applicants proved their asylum requests. Since the facts were clearly established, the Court’s conclusion is straightforward: the Cypriot authorities ‘did not conduct or claim to have conducted any assessment of the lack of access to an effective asylum process in Lebanon’, nor of the risk of refoulement or the living conditions of asylum seekers in Lebanon (para. 94). Instead, Cyprus simply relied on the assumption that Lebanon was a safe third country.

Before turning to this answer, however, the ECtHR indeed engages with the situation in Lebanon (para. 92-3), referring, for instance, to a ‘policy of deporting Syrians for irregular entry’. For a (procedural) violation of Article 3 ECHR, it should not matter whether the Court considers Lebanon to be safe – only that Cyprus had not examined this issue. These remarks raise questions: what if the Court had found no shortcomings in the Lebanese asylum system – would that have absolved Cyprus from examining this system prior to removal? The ECtHR probably intended to highlight that the shortcomings were well known and that Cypriot authorities knew or ought to have known about them (para. 93). Similarly, in Ilias and Ahmed, the Court examined available material on Serbia in order to expose that Hungary had failed to consider important information when assessing whether Serbia was safe (para. 158-60). The difference is that, here, Cyprus conducted no assessment whatsoever – still, the Court examines material on Lebanon. Thus, the question remains: if the conditions in Lebanon had been different or less obvious, would individual procedures have been dispensable?

Following Ilias and Ahmed, the answer is negative. The strength of that reasoning is to subject every removal of asylum seekers to a third country without examination of their asylum claim on the merits to the procedural obligations under Article 3 ECHR, regardless of the arguability of their claim and of the situation in the third state. The case at hand illustrates the need for the Court to clarify the content of procedural obligations under Article 3 ECHR in future cases, so as to prevent the erosion of established principles.

Prohibition of Collective Expulsion: Protecting Asylum Seekers Only?

Although the scope of Article 4 of Protocol No. 4 ECHR contains no limitation to asylum seekers, the Court’s assessment of the complaint of collective expulsion, too, was influenced by the factual finding that the applicants requested asylum. The judgment echoes the connection between this provision and Article 3 ECHR established in N.D. and N.T., stating that the purpose of the former was to enable an individual to assert a risk of ill-treatment (para. 112). This statement had an exclusionary effect in N.D. and N.T. where the applicants’ claim under Article 3 ECHR had been rejected. In the case at hand, it appears to strengthen the applicants’ complaint under the prohibition of collective expulsion.

Indisputably, the applicants’ return from Cyprus constituted an ‘expulsion’ (para. 115), and was conducted without individual decisions (para. 116). The only legal requirement possibly jeopardising the applicants’ complaint was the ‘own culpable conduct’ test, as developed in N.D. and N.T. This initially narrow exception has been extended in A.A. v. North Macedonia to apply when applicants ‘circumvent’ genuinely and effectively accessible means of legal entry.

The Court concisely assessed available lawful means to enter Cyprus. It rejected Cyprus’ submission that the applicants could have applied for an entry visa, which ‘subject to financial and other requirements, could not constitute a genuine and effective possibility for the present applicants to submit their reasons (asylum) against expulsion’ (para. 118, emphasis added). Here, the ECtHR distinguished the case from previous ones where it had activated the own culpable conduct exception (compare N.D. and N.T., where a working visa was considered a valid legal means of entry, para. 228). The decisive difference seems to be that M.A. and Z.R. were considered asylum seekers, as opposed to economic migrants (in N.D. and N.T.) or persons in transit (in A.A.). The Court’s pragmatism regarding the genuine availability of alternative means of entry is certainly welcome, in particular in light of the criticism on this precise aspect in N.D. and N.T. and A.A. However, one cannot but wonder how the same passage would read if the applicants’ status as asylum seekers were less clear. The judgment further deepens the distinction between collective expulsion of asylum seekers and of other migrants. The latter include potential asylum seekers who cannot provide sufficient evidence for having asked for asylum, as illustrated by M.A. v. Latvia, where the same identical applicants, who had proved to be asylum seekers in M.K. v. Poland, failed to prove that they also raised asylum claims at the Latvian border.

No Need to Examine the Complaint on Detention?

An examination of the applicants’ complaint under Article 5 ECHR was not considered necessary. The judgment refers mutatis mutandis to Sherov and Others v. Poland, a recent pushback case, where the Court, upon examination of non-refoulement and the prohibition of collective expulsion, saw no need to examine issues under Article 8 ECHR. It is common practice of the ECtHR, not least in pushback cases, to focus on the main legal questions of the case and omit an assessment of claims under other provisions (compare e.g. M.H. v. Croatia, para. 338-9; D. v. Bulgaria, para. 138-9; M.D. and Others v. Hungary, para. 68-9). Complaints of unlawful detention, however, are typically examined as issues separate from expulsion or ill-treatment (compare, e.g. Khlaifia and Others v. Italy (GC), para. 55-135; Akkad v. Turkey, para. 93-109). Surprisingly, the Court, on a side note regarding ill-treatment, mentions that ‘[t]he absence of a relevant legal framework regulating the circumstances under which a person is to be kept at sea pending a determination of their status could on its own raise a structural issue for the purposes of Article 3’ ECHR (para. 133). The reasoning not to ‘delve further into the matter in the absence of relevant legal arguments to this effect by the applicants’ (para. 133) conflicts with the Court ‘being master of characterisation to be given in law to the facts of the case’ (W.A. and Others v. Italy, para. 67; citing Radomilja and Others v. Croatia (GC), para. 114). Considering that the applicants argued for a violation of Article 5 ECHR and that the lack of a ‘clear and accessible legal basis’ for detention had led the Court to finding violations of Article 5 ECHR in previous pushback cases (J.A. and Others v. Italy, para. 98; Khlaifia and Others v. Italy (GC), para. 105-7), the case offered enough material to prompt the Court to examine this complaint.

Situating M.A. and Z.R. in the ECtHR’s Pushback Case Law

In M.A. and Z.R., the ECtHR continues to condemn unlawful border practices, in line with its most recent case law regarding Hungary and Poland. This judgment affirms that the restrictive reasoning in N.D. and N.T. and A.A. may not be misinterpreted as a general endorsement of pushbacks under the ECHR. The judgment underlines the crucial role of procedures at borders by harnessing the procedural implications of Article 3 ECHR and the procedural guarantee of Article 4 of Protocol No. 4 ECHR. However, regarding both provisions, the Court strongly emphasised the applicants’ position as asylum seekers. Thus, the assessment of Article 4 of Protocol 4 ECHR, in particular, continues to undermine the Court’s own premise, to apply the provision to all individuals, irrespective of ‘[their] status as a migrant or an asylum-seeker and [their] conduct when crossing the border’ (N.D. and N.T., para 185).

Pushbacks are notoriously difficult to prove. M.A. and Z.R. is an example of sound legal technique regarding evidentiary issues, raising expectations for pending pushback cases: in June 2024, the Court held a remarkable Chamber hearing, being one out of only thirteen hearings before a Chamber in the last decade and unprecedented in pushback cases. The oral contributions focused solely on evidence. Moreover, Chambers recently relinquished jurisdiction in favour of the Grand Chamber regarding three pushback cases with disputed facts. With a view on these pending cases, one can hope that the ECtHR will use its evidentiary approach in M.A. and Z.R. as a blueprint. Meanwhile, states continue to violate human rights at borders on a daily basis. This legal analysis should thus not cover the reality of the applicants who remain in Lebanon, despite the pushback’s evident unlawfulness.

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