June 02, 2026
By Grażyna Baranowska, Jill Alpes and Isabel Kienzle
Pushbacks are practices which result in migrants being forced across borders without an individual assessment of their protection needs. While they are a persistent feature at many European borders, the facts surrounding pushbacks often remain invisible in the ECtHR judgments. Our recent article in the International Journal for Human Rights examines how the Court could better uncover these practices by making fuller use of its existing tools to gather and assess evidence, drawing on both legal doctrine and empirical insights.
The paradox is striking: While civil society organizations, journalists, and international organizations have all documented large-scale and systematic pushbacks across Europe, these events frequently appear fragmented, under-evidenced, or even absent in ECtHR rulings. Pushbacks at European borders have been documented, among others, by Amnesty International, Border Violence Monitoring Network, Forensic Architecture, CoE Commission for Human Rights European Committee of the Prevention of Torture and the UN Special Rapporteur on Migrants. The result is a gap between lived border realities and judicially recognized facts.
One factor making key pushback facts invisible in rulings is that ECtHR judges rely heavily on state evidence. This reliance is particularly problematic in pushback cases for two reasons. First, European states have not consistently recorded state practices at borders, making state evidence absent. For example, as Shahzad v. Hungary (No. 2) reveals, Hungary has switched off its cameras at the border at precisely those moments when alleged pushback practices were occurring. Second, European states have also actively prevented migrants and civil society organizations from producing evidence about state practices, for example, through confiscating migrants’ phones containing video and photo evidence.
We argue that the ECtHR can mobilize existing tools to both gather and analyze evidence in pushback cases in a context-specific manner. We differentiate between (1) gathering and (2) analyzing, while acknowledging that these processes are also at times blurred and interdependent.
Drawing on our article, we here present different tools for the ECtHR to gather evidence that account for the specific border context where states have not properly documented events and have prevented individuals and civil society actors from producing evidence in turn. These tools can also be relevant in other contexts, namely cases with disputed facts in which the parties, particularly the respondent state, do not submit relevant evidence on their own. The primary aim of these tools is to compel both parties to fulfil their duty of presenting evidence.
Rule 44A of the ECHR Rules of the Court gives the ECtHR the power to request information from the parties at any time. These requests often are part of the ECtHR’s communication of the case to the parties. However, the ECtHR has so far been hesitant to use those requests for gathering evidence from states in pushback cases. In our review of 89 communicated pushback and border cases, including pending ones, the ECtHR only asked factual questions in 16 cases.
For example, in M.A. and Others v. Latvia, the ECtHR requested the Government to provide ‘information on all asylum requests submitted at the Latvian border crossing point “Indra” on 24 November 2017, including the procedures followed with respect to those requests and the decisions taken’. In Asady and Others v. Slovakia, the ECtHR had requested ‘documents relating to the identification of the applicants, assessment of the applicants’ cases, staff present at the police station and the presence of the interpreter, a detailed timeline of applicants’ presence on Slovak territory and any further relevant documents’.
Even when the ECtHR requested information in pushback cases and states did not provide them, the Court refrained from finding that the state did not fulfil its obligations to cooperate with the ECtHR, in violation of Article 38 ECHR, and from drawing adverse inferences when establishing the facts (Rule 44C). In M.A. and Others v. Latvia, for instance, the state submitted only the refusals of entry in response to the ECtHR’s request and did not provide records of the conducted interviews. Despite this, the ECtHR found that the applicants had failed to provide prima facie evidence. Even though the missing documents were crucial to substantiate the applicants’ claim, the ECtHR did not draw inferences, but instead rejected the claim.
In sum, requesting evidence from states is a feasible and effective tool at the disposition of the ECtHR, but remains under-exploited.
Procedural obligations of states can contribute to producing evidence. In pushback cases, both the principle of non-refoulement (Article 3 ECHR) in its procedural limb and the prohibition of collective expulsions (Article 4 Protocol 4 ECHR) trigger procedural obligations of states as regards expulsions at borders. States are obliged to individually assess whether a person faces a real risk of being subjected to treatment in breach of Article 3 ECHR or has another claim against the expulsion. This ‘reasonable and objective examination of the particular case of each individual’ in practice regularly takes the form of personal interviews.
To assess whether the minimal procedural standards have been fulfilled, it is crucial for the state to document the procedure properly. Procedural obligations in pushback cases thus imply that states have to keep correct recording of how they assess claims for international protection at borders, as well as of individual events at borders. In other contexts, notably detention under Article 5 ECHR and enforced disappearances under Article 2 ECHR, the ECtHR found a procedural violation of the ECHR when the state had failed to properly record events. Similar standards should be invoked for pushbacks, since the specific border context implies that states often conceal and deny their practices. Pushbacks are at particular risk of clandestine execution, similarly to secret detention and enforced disappearances.
In sum, by insisting on states to respect procedural obligations, the ECtHR urges states to produce records and conduct effective investigations. Focusing on procedural obligations to produce evidence helps to compensate missing evidence for substantial rights violations.
Rule 39(1) allows the ECtHR judges to request ‘any interim measure’ if the interest of the parties or the proper conduct of the proceedings so require. We argue that besides their original purpose, namely preventing irreparable harm, interim measures can also make the circumstances of pushback cases visible.
The standard of proof for granting interim measures is significantly lower than at the merits stage; the vast majority of requests are processed on the sole basis of the information provided by the applicant. Thus, accepting an interim measure per se does not suffice to evidence that an incident has occurred. However, many accepted interim measures can point to a pattern, for example of not accepting asylum applications at a border crossing. Equally, the ECtHR can draw inferences if the state does not follow the interim request. Such instances could serve as prima facie evidence, upon which the burden of proof shifts.
According to Rule A1(1) and A1(2) of the Annex concerning investigations to the Rules of Court, the ECtHR can also appoint experts in hearings or ask them to submit written reports. The Court has already appointed experts when parties disagree about key facts of a case. In W.A. and Others v. Italy, a case concerning the applicants’ expulsion to Sudan, the state contested that the applicants had been among the expelled group of forty migrants. The Chamber then appointed an expert to solve the question.
While the ECtHR has not yet appointed an independent observer to a border region, it would be possible under Rule A1(6), according to which the President of the Chamber may ‘invite (…) any third party to participate in an investigative measure’. As introducing independent observers would be an entirely new measure, it raises a number of practical questions, such as establishing the length of observations, the nomination procedure of observers, securing full access to the border and all facilities, as well as financing. When developing the procedures, the ECtHR could rely on the experience of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and the UN Special Rapporteur on the human rights of migrants, who have conducted missions to European border regions and released reports that included information on the factual situation regarding pushbacks and evidence (see f. ex. reports on Greece and Poland).
After examining the tools the ECtHR can use to gather evidence in light of the specific border context, we now turn to ways in which the Court can adjust its assessment of evidence already submitted.
In some pushback cases, the ECtHR has labelled evidence provided by applicants as prima facie and explicitly stated that the burden of proof shifts accordingly (e.g. N.D. and N.T. v. Spain [GC]). This shows that the ECtHR has recognized that, in pushback cases, there is a pronounced disparity in access to information. However, a closer examination has exposed that the ECtHR requires applicants in pushback cases to bring forward more evidence compared to other instances, in particular enforced disappearances and detention.
Shifting the burden of proof to the state whenever applicants have presented prima facie evidence makes it significantly easier to bring pushback cases to the ECtHR. It is crucial to establish which prima facie evidence would be sufficient to induce a shift of the burden of proof. In other contexts, reliable testimonies of eyewitnesses have been sufficient. If applied to pushbacks, litigators would need to provide testimonies of witnesses, for example other persons that were pushed back, which would then lead to a shift of the burden of proof to the states. The ECtHR has also in other context acknowledged the fact that the events occurred in an area within the exclusive control of the state as prima facie evidence that the state may have been involved. Thus, in pushback contexts, if physical violence was conducted during a pushback in a border zone, the ECtHR would assess whether this area was within the exclusive control of the state – if so, the burden of proof would shift to the state. This would be particularly meaningful in contexts in which accessing a border zone is prohibited.
According to Article 38 ECHR and Rule 44A of the Rules of Court, states are obliged to cooperate with the ECtHR in proceedings. Furthermore, according to Rule 44C the ECtHR can draw inferences when a party fails to participate effectively in the proceedings. Providing the ECtHR with wrong statements is a failure to participate effectively in the proceedings. It is up to the ECtHR to draw inferences from such conduct. Thus, the ECtHR can find that when a state provides false statements in the proceedings, the burden of proof should shift from the applicant to the state. Such a practice can be a good way to address the wrong conduct of states, as well as make it possible for applicants to bring pushback cases even when the state denies the incidents and provides wrong statements.
While the ECtHR does not yet engage in such a practice, this could well be established in pushback proceedings, where States have submitted inaccurate and incomplete evidence to the Court. For example, the ECtHR has established that there was ‘a systemic practice of misrepresenting statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard […] at the border checkpoints between Poland and Belarus’. Those official notes, systematically distorting asylum seekers’ statements, were subsequently presented to the ECtHR as evidence that no protection claim had been filed. This did not, however, lead to a shift of the burden of proof: in the ECtHR proceedings, the Polish state continued arguing that applicants had not asked for asylum in the first place and the ECtHR expected the applicants to produce detailed evidence to the contrary.
Another tool ECtHR judges can rely on to assess the specific context of pushbacks is third-party interventions. Our review of case law revealed that in all pushback cases before the Grand Chamber and in several Chamber cases third-party interveners have submitted observations. Third-party interventions may corroborate a general practice or produce evidence for the particular event at stake. Thus, by attributing more weight to evidence produced by other actors, in particular third-party interveners, such as international organizations, NGOs or migrants themselves, the ECtHR could make pushbacks more visible in its judgments.
Indeed, the ECtHR at times uses third-party interventions to support factual allegations. In Hirsi Jamaa and Others v. Italy [GC], for instance, the parties disagreed on whether the applicants were given any information regarding their return to Libya and available legal safeguards. The ECtHR upheld the applicant’s version because it was ‘corroborated by a very large number of witness statements gathered by UNHCR, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and Human Rights Watch.’
The widespread practice of pushbacks at European borders endangers lives and undermines the rule of law in CoE member states. The tools summarized here – and analyzed further in our article – can render pushbacks visible before the ECtHR within existing case law and its procedural framework. Consolidating, developing and applying these tools can enable the ECtHR to fulfil its mandate as guardian of the ECHR, even in the face of political constraints and the politicized context of migration.
This post is based on the authors’ academic article, Baranowska, Alpes, Kienzle (2025) ‘Making pushback facts visible: a review of tools in existing case law and the procedural framework of the European Court of Human Rights’ International Journal of Human Rights Law, 1925-1950 and reflects parts of the analysis as originally presented there.
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