March 04, 2025
By Grazyna Baranowska
On 12 February 2025, the Grand Chamber of the ECtHR held three hearings relating to pushback cases conducted by Poland, Latvia and Lithuania. The cases were relinquished to the Grand Chamber and heard in a single – very long – day, since all the alleged violations occurred within the same broader context orchestrated by Belarusian authorities. The respondent states maintain that this is an instance of Belarus ‘instrumentalizing migration’, allowing for a different application of ECHR standards. This blog posts analyses the proposed legal consequences of instrumentalization discussed during the hearing.
The three groups of cases were discussed in more detail on this blog earlier. For this post, it is worth noting that in all cases, the states disagree with the applicants on the underlying facts. Moreover, while all of the applicants raised pushbacks, the three cases also differed from one another: the Afghan nationals were forced to live for two months in a makeshift camp on the Polish-Belarusian border; the Iraqi nationals applicants, including very young children, were formally detained in Latvia; and the Cuban nationals claimed, among others things, that they were ill-treated by Lithuanian border guards.
On these facts, the applicants alleged violations of Convention protections under various articles of the ECHR and its Protocols. For the discussion on the consequences of instrumentalizing migration, particularly relevant are: the non-refoulement obligation under Article 3 ECHR and the prohibition of collective expulsions under Article 4 of Protocol 4. The prohibition of collective expulsion was restricted by the ECtHR in its 2020 judgment in ND and NT. The Court held that this prohibition may not apply if migrants were provided a legal way to enter the territory but deliberately chose to enter at an unauthorized location, taking advantage of their large numbers and using force—the so-called ‘own culpable conduct’ test.
All states taking the floor during the hearing – Poland, Latvia, Lithuania and Finland (which was allowed to intervene) – placed significant emphasis on the instrumentalization of migration by Belarus. The current crises began with the fraud presidential elections of August 2020 in Belarus and subsequent repressions, which led the EU to impose sanctions. In response, Belarusian authorities started facilitating irregular crossings into the EU in 2021, including by issuing visa to third-country nationals and transporting them to EU borders. There have also been reports of Belarusian authorities mistreating migrants and forcing them to cross irregularly. This practice was quickly labelled as an ‘instrumentalization of migration’ and a ‘hybrid attack’, including by Ursula von der Leyen, President of the EU Commission, who had previously used similar language when in February 2020 Türkiye allowed migrants to cross irregularly to Greece. However, the exact meaning of this term and its legal consequences remain unclear. Greater clarity at the EU level was provided in 2024 through amendments to the Schengen Borders Code and the Crisis and Force Majeure Regulation. While some have welcomed the EU rules as a tool to prevent unilateral and excessive national measures, others have criticized them for threatening legal certainty and bearing far-reaching consequences for the rule of law in the EU. The ECtHR itself has not yet dealt with the concept of instrumentalization of migration.
Right to seek asylum
While emphasizing that the ECHR itself does not provide a right to seek asylum, none of the countries in the proceeding argued that instrumentalization justifies annulling or temporarily suspending the right to seek asylum (which would be in contradiction to EU and international law). When asked by Judge Krenc whether this was Poland’s position, Polish authorities explicitly rejected this. Like Lithuania, Poland maintained that means of legal entry and the possibility to request asylum at official border crossings were available to the applicants. While in Latvia the regulations at the time explicitly prohibited state authorities from accepting asylum claims at the border to Belarus, at the hearing the authorities argued that it was possible to apply for humanitarian visas at the border and subsequently apply for asylum in Latvia.
It is worth emphasizing that there was no outright rejection of the right to asylum, as this claim appears as a political argument in various EU countries. However, in all three cases, the applicants contested the states’ assertion that means of legal entry and the ability to request asylum were genuinely available in practice. Thus, I would argue, a crucial aspect of the judgments will be how the ECtHR assesses the evidence and whether it finds that access to asylum procedures was indeed provided. The evidentiary questions extend beyond the scope of this blog post, but for further discussion, see here, here, here, and most recently – already including comments on the 12 February 2025 hearing – here.
Context-specific interpretation
The most often mentioned consequence of instrumentalization was the need to apply the Convention rights in a context-specific manner. While acknowledging that context is crucial, what does it mean specifically in these cases?
Finland’s intervention focused on this issue, arguing for a context-specific interpretation of rights under Article 3 and Article 4 of Protocol 4 with regard to such cases. According to Finland’s submission, this could mean that the ECtHR applies its established criteria on jurisdiction and admissibility with particular rigor and subjects the facts invoked to close scrutiny. When Judge Elosegui directly asked how the ECtHR could apply such context-specific principles, Finnish authorities merely reiterated that even in cases involving absolute rights, a state’s obligations are not identical in every case or situation.
In my opinion, it could be justifiable that, in the context of a third county actively facilitating irregular migration, the ECtHR would exercise particular caution and rigor. However, this does not mean the Court would alter its own procedures, such as those regarding the shifting of the burden of proof based on prima facie evidence. No such change was proposed during the oral pleadings.
The representatives of Finland have also argued that context-specific interpretation is relevant for applying the ND and NT test. They argued that the ECtHR should consider the nature of the threat posed by instrumentalized migration and the realistic ability of the targeted state to make available ways of legal entry in such exceptional circumstances. The argument was not to permit all pushbacks in the context of instrumentalization but rather to take the specific situation into account when assessing whether the state has indeed provided ways of legal entry.
From my perspective, it could be reasonable to consider the realistic ability of states to stay within the confines of the exception on collective expulsions (the ND and NT test) in this context. However, the existence of the legal means of entry is a basis for the test and there is usually disagreement between states and applicants as to the whether they were indeed provided. In light of such disagreements, it may not be practical or desirable to add another layer of scrutiny to this part of the test. As the evidentiary threshold expected by the ECtHR from applicants in pushback cases is already very high, requiring additional evidence regarding availability of ways of legal entry could have particularly detrimental effects on the protection of migrants’ ECHR rights.
Positive and negative obligations
While none of the parties addressed the distinction between positive and negative obligations in their pleadings, Judge Bardson asked whether there is a need for the ECtHR to re-assess state obligations with this distinction in mind. In particular, he posed the question whether conducting a concrete and individual risk assessment under Article 3 and Article 4 of Protocol 4 constitutes a positive procedural obligation that can be distinguished from the negative core obligations. In his submission he recalled that the individual assessment cannot be disregarded altogether, but making a distinction between negative and positive obligations could allow governments to regulate the modalities of this risk assessment, including the time and place for initiating such a procedure.
In response, several points were made. The litigators for the applicant in the Latvian case agreed that, with regard to some positive procedural obligations, the context could be taken into consideration. However, they argued that this cannot lead to diluting positive obligations, particularly since this would also dilute negative obligations. The Finish authorities endorsed the idea of distinguishing between positive and negative obligations. They proposed that, when addressing positive obligations, it should also be assessed whether compliance with them would be an excessive burden on the state, which could be the case when migration is instrumentalized
In my view, developing the distinction between positive and negative obligations could indeed be a way for the ECtHR to address the threat of instrumentalization while also protecting human rights. Yet, it is difficult to evaluate this proposal, as the idea was not developed in depth during the hearings. Furthermore, this could only affect the modalities of the risk assessment, not the need for conducting it.
Derogations
Judge Bardsen also asked in all three hearings whether the situation would be any different if the states had derogated from the ECHR invoking Article 15 ECHR due to the instrumentalization of migration. Both the states representatives and the applicants responded that it would not, though for different reasons. The applicants all argued that it would not because Article 3 is non-derogable according to Article 15(2) ECHR. These arguments were also presented in detail in the joint third-party submission led by Professor Nora Markard, demonstrating that even derogation measures allowing for collective expulsions would create a grave risk of abuse in relation to Article 3. In contrast, the states all argued that derogation was not necessary, as they consider their actions as being in line with the ECHR. The disagreements around the factual situation are an important factor to consider here, however. The applicants disagreed with the states on whether there was access to asylum procedures and (in some cases) on whether the applicants were on the respondents’ states territory.
Overall, derogation measures were not argued to be the right tool to address instrumentalization of migration. They would also be inconsistent with other obligations under international law, including EU law. In this context it is worth noting that the CJEU found in its 2022 judgment M.A (mentioned several times during the hearing) that EU law provides adequate mechanisms to respond to what is happening at the EU-Belarus border, without derogation of ECHR standards being necessary.
Article 17
State interveners also suggested to the ECtHR that it employ Article 17, which prohibits invoking the ECHR in case of abuse of rights, in the context of the instrumentalization of migration. The ECtHR has relied on Article 17 to prevent groups and individuals from successfully invoking fundamental rights and freedoms to justify anti-democratic activities. I would argue, that it could not similarly apply to migrants and asylum seekers, who themselves have been subjected to instrumentalization by Belarus. Thus, in my opinion, it is extremely unlikely that the ECtHR will employ Article 17 in this context.
Poland, Latvia, Lithuania and Finland all requested the ECtHR to interpret the applications in light of Belarus’s instrumentalization of migration. As the Polish agent thanked all states that intervened in writing, and the Latvian agent noted that several intervening states reported similar attacks, it can be safely assumed that this was also asked by the eight states that submitted written interventions, namely Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Norway, Slovak Republic and Ukraine. There seems to be consensus among ECHR state parties, that instrumentalization of migration is an important issue to be addressed by the Court. However, after listening to over seven hours of hearings, there are no clear proposals on the legal consequences of instrumentalization of migration.
The very fact that the cases were relinquished to the Grand Chamber, the scheduling of all three hearings on the same day, and the questions posed by the judges suggest that the instrumentalization of migration will be considered by the ECtHR in the judgments. The two proposed legal consequences discussed during the hearings that seem most likely to be picked up in the judgment are acknowledging context-specific interpretation and making a distinction between positive and negative obligations. In both cases, many open questions remain regarding how exactly the Court might apply these principles, especially given the repeated emphasis during the hearing that the relevant rights are of absolute nature.
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