April 28, 2026
by Ananya Kumar-Banerjee
On 3 February 2026, the European Court of Human Rights (“Strasbourg”) handed down OH and Others v Serbia (No. 57185/17) (“OH and Others”). Strasbourg considered whether the Serbian Government’s pushback of seventeen migrants into Bulgaria was in breach of the European Convention. Ultimately, the Court held that Serbia had breached Articles 3, 5 and Article 4 of Protocol 4 of the Convention. These findings were largely premised on the Serbian Constitutional Court substantively finding a breach of these Convention rights. This blogpost will review the case’s background facts, Strasbourg’s findings, and the use of evidence in comparator pushback cases. It draws on the arguments of scholars such as Katsoni, Motz and Mullis to argue the domestic judicial organ’s findings of fact were critical to Strasbourg holding there were breaches of the Convention.
In 2017, seventeen Afghan nationals lodged a constitutional appeal in Serbia. Their appeal alleged breaches of the Serbian Constitution and the European Convention associated with their apprehension in Serbia, subsequent detention (paras. 91, 113-118, 120-127) and summary return to Bulgaria (paras. 28-29). Under the Convention, the applicants alleged violations of Articles 3, 5 and Article 4 of Protocol 4. The facts giving rise to allegations under Article 3, on which this blogpost focuses, related to the conditions of detention, the manner of the applicants’ removal from Serbia (paras. 128-134), and the state’s obligation to investigate the risk of refoulement (paras. 135-149).
In 2020, the Serbian Constitutional Court partially upheld the applicants’ appeal regarding the arbitrary nature of their detention and their removal conditions, holding there were breaches of the Serbian Constitution and the European Convention (para. 26). The Constitutional Court awarded each applicant 1,000 EUR as compensation for losses flowing from these breaches (para. 66). The applicants appealed to Strasbourg on the basis that this award was not appropriate or sufficient (para. 69).
Strasbourg heard the appeal on the basis that the Serbian Court had failed to give the applicants an appropriate award considering the “serious nature” of the violations (para. 72). Strasbourg also highlighted that while the Serbian Court had reviewed the European case law on non-refoulement, it failed to address its explicit link to Article 3 in its finding of breach. This gap rendered the applicants’ allegations on the failure to discharge the procedural obligation under Article 3 independently admissible (para. 139).
In their February 2026 judgment, Strasbourg found breaches of Articles 3, 5 and Article 4 of Protocol 4. The breaches were as follows.
Violations under Article 3 arose from the conditions of removal (para. 134) and the Serbian Government’s procedural failure to assess whether the removed applicants were at risk of refoulement (para. 149), but no breach was found owing to the conditions of detention (para. 111). Under the former heading, Strasbourg relied on the Serbian Court’s finding that the conditions of removal were “inhuman” (para. 29). The Serbian Court found the removal exposed them to a “very cold night, with temperatures – 2°C” which suggested “elements of inhuman treatment” (paras. 28-9). The removal was furthermore effected by police officers who acted contrary to the instructions of the Serbian Misdemeanor Court (para. 20) which explicitly affirmed the obligation to not engage in refoulement (para. 17). Strasbourg repeated these findings by the Serbian Court and holding “no grounds to depart from the findings of the Constitutional Court” (para. 133).
In the matter of the procedural obligation to investigate the risk of refoulement, the State did not put forward a positive case. The Serbian Government did not argue that it had assessed the country of removal as safe (para. 147). In response, Strasbourg noted that “any assessment of access to an asylum procedure in Bulgaria and of the adequacy of that procedure” was noticeably absent from evidence before the Court (para. 147). It then proceeded to find a breach on this ground.
For the allegations of a breach under Article 3 relating to the conditions of detention, the complained-of conditions constituted a prima facie breach of Article 3. This enabled Strasbourg to shift “burden of proof…to the respondent Government who alone [has] access to information capable of corroborating or refuting these allegations” (para. 98). The shifting of this burden of proof mirrors the Court’s approach in forced disappearance cases. Notably, no breach was found owing to the conditions of detention.
Strasbourg held there was a violation of Art. 5(1) on the basis that the applicants’ liberty was unlawfully restricted (para. 178). Likewise, Strasbourg held there was a violation of Art. 5(4) regarding the right to appeal the lawfulness of detention or arrest (para. 187), which was consistent with the findings of the Serbian Constitutional Court (para. 166). No violation was found of the right to be informed of reason for arrest in comprehensible language (Art. 5(2)), as Strasbourg “accept[ed] the Government’s assertion that a Farsi interpreter was present” (para. 183).
Although not discussed at length in this post, it is notable that the Serbian Government put forward a positive case regarding the interpreter, and that Strasbourg accepted their account on the basis that the applicants’ account was inconsistent.
As with the breaches under Article 3, in its brief consideration (paras. 79-89) of whether there was a breach of the Art. 4 of Protocol 4 provision against collective expulsion, the Court noted that the Serbian Court had already found a violation of the provision in substance (para. 88). Strasbourg accepted the Serbian Court’s findings and went on to confirm that they had “no reason to disagree with that assessment” (para. 88).
OH and Others is one in a series of cases dealing with allegations of a pushback contrary to the Convention. Strasbourg’s approach to these cases recently has been closely watched; European governments have issued explicit calls for Strasbourg to take a stricter approach to the application of Article 3 in removal and pushback cases.
Of particular interest is Strasbourg’s approach to Article 3 in this case: one heading of the breaches under Article 3 related to the State’s procedural failure to sufficiently investigate the risk of the applicants’ refoulement after they had been returned to Bulgaria. The other heading related to the “inhuman” conditions of their return to Bulgaria (para. 128).
Strasbourg accepted as authoritative the Serbian Court’s findings regarding the conditions of removal and the lack of risk assessment carried out by the national authorities (para.29). These findings of fact by the Serbian Court were central to Strasbourg’s ability to find a breach; Strasbourg, for example, relied on the Serbian Court’s recounting of the “inhumane” treatment. Strasbourg also relied on findings of fact by the Misdemeanor Court (para. 17). These Serbian courts served a key role by legitimising the accounts of the applicants and acknowledging the failures of the Serbian police under Article 3.
This case confirms the importance of national authorities in pushback cases as key sources of evidence, which was hinted at in ARE v Greece (“ARE”). Evidence plays a decisive role in pushback cases because pushback survivors rarely have access to the documentary evidence necessary to make out and then prove a case; in the course of pushbacks, state agents regularly destroy applicants’ documents (incl. travel documents) and confiscate any means they have of documenting state violence (e.g., by destroying mobile phones).
Strasbourg imposes unusually demanding evidentiary requirements on pushback survivors as embodied by the cases of GRJ v Greece (“GRJ”) and ARE.
In GRJ, the applicant alleged breaches of Articles 2, 3 and 13. His application was held inadmissible. The applicant before Strasbourg failed to make out a prima facie case of his alleged pushback into Turkey, owing to the “contradictory and inconsistent” nature of his statements and allegations (para. 22). In his case, Greece denied any such pushback. Accordingly, while it was relevant that the applicant’s account corresponded with reports from international and national institutions regarding pushbacks, he could not make out a prima facie case because of the problems with his own account (para. 49). GRJ thus reveals how Strasbourg “requires from the [pushback survivor] applicant far stronger evidence in practice that what can reasonably be understood to fall under the prima facie label” (p. 367).
In ARE, the applicant alleged breaches of Articles 2, 3, 5 and 13. Unlike GRJ, the applicant in ARE passed the admissibility stage because she presented an unusual amount of evidence. Nevertheless, at the merits stage, Strasbourg required the applicant to present an account that was “detailed, specific and coherent, that is to say, free of contradictions, with concrete, detailed and concordant evidence” in order to shift the burden of proof (para. 217). (It has been argued that the shifted burden of proof in such cases was intended to remedy a structural inequality of access to evidence by applicants.) In ARE, the applicant adduced “detailed, specific and consistent” evidence that was “largely in line with the modus operandi” documented in reports of pushbacks (para. 230). This included findings of fact from a Turkish Court (paras. 90, 240). Together, this evidence amounted to prima facie evidence of a breach, enabling Strasbourg to shift the burden of proof (para. 241). Strasbourg ultimately held there were breaches of Arts. 3, 5 and 13 of the Convention.
In OH and Others, the applicants’ account of the pushback into Bulgaria was merely “credible and reasonably detailed” (para. 98), but this was sufficient to shift the burden of proof onto the Respondent State. Here, the judicial organ affirmed the applicants’ account of inhumane treatment, substantiating accounts that might otherwise have failed Strasbourg’s stringent tests.
As GRJ demonstrates, individual applicants alone will struggle to substantiate their claim. In ARE, Strasbourg hinted at the importance of findings of fact by a national authority.
In OH and Others, the Serbian Court cemented the credibility of evidence of Convention breaches, enabling Strasbourg’s findings of breach. Strasbourg thus confirmed that findings of fact by a national judicial authority are likely to be the most important piece of evidence an applicant can adduce.
This aligns with the findings outlined by Katsoni, and affirmed again by Motz and Mullis, that Strasbourg’s willingness to find a breach of the Convention in pushback cases is contingent upon the presence of adequate and effective national accountability mechanisms. O.H. and others confirms this specific importance of national judicial authorities as fact finders.
Notably, Strasbourg’s finding of breach in OH and Others confirmed what was already determined, legally, at the national level. It is not clear whether Strasbourg would be willing to contest a national authority’s legal finding that there was no substantive breach of Article 3, even where central findings of fact were present.
Given increasing political pressures against finding breaches of Article 3 in pushback cases, Strasbourg’s reliance on the national court’s finding of fact here is striking. It indicates the European Court’s ongoing desire to remain steadfast in its commitment to the Convention’s originary principles of effective human rights protection. At the same time, it reveals Strasbourg’s need for approval from a national court or, even (in effect), consent from a Respondent State for such a declaration of breach to take place. In the future, it is unclear if Strasbourg will be so willing to find breaches of the Article 3 if the Respondent State resists.
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