This is why it is so difficult to sue when human rights are violated

I am often asked why people on the run do not simply sue in a court of law when their elementary human rights are violated by EU states or Frontex. This question is very legitimate, but not easy to answer. In this text, I will address some key points that make it so difficult for people on the run to claim their rights. 

Human rights are rights that the state guarantees to every individual on its territory or under its jurisdiction. The jurisdiction of the respective court is always given when state actors such as police, border guards or the army encounter people in the exercise of their duties. State responsibility, on the other hand, is more difficult to prove and assert when EU actors such as Frontex or the European Border and Coast Guard Agency (EBCGA) act.

The burden of proof lies with the plaintiffs 

Those who claim a violation of their human rights must first prove their own involvement. In the case of pushbacks, the nature of these acts makes it difficult to prove one's own presence at the scene, as witnesses who are not also perpetrators or victims usually do not exist. Fugitives who are on a boat on the high seas and are pushed back often have no way to provide evidence of their presence on the boat after the fact because, for example, people's cell phones are collected or destroyed, or at least cell phone videos are deleted. Without evidence, an individual case claiming to have been unlawfully „collectively expelled“ or „pushed back“ is unlikely to succeed.

Lack of access to justice 

Access to justice is another early hurdle in the legal action process. If a person is on the territory of the state which that person also accuses of violating the rights, the person concerned can bring such violations before the national court of first/lower instance. The EU legal order allows individuals to bring a case before the European Court of Human Rights (ECtHR) once all national remedies in the country concerned have been exhausted, i.e. all instances of the national legal system. Thus, if a person is encountered by the border guards of a state subject to the ECtHR at sea, on territorial or extraterritorial territory, the rights and obligations deriving from the European Convention on Human Rights (ECHR) apply. However, such actions can in fact only be brought if the person concerned is in the infringing state. This is never the case with pushbacks, or at least not until an attempt to cross the border has succeeded.

All EU member states and also associated states are parties to the ECHR. As such, they can be sued before the ECtHR. 

Refugees cannot simply sue Frontex

Things get a bit more complex if, for example, Frontex is the authority that has potentially committed the violation. As an EU agency, an action against it cannot be brought before the ECtHR but only before the Court of Justice of the European Union (ECJ). The ECJ, in turn, does not hear individual rights complaints, but rather disputes between organs. So e.g. EU member state against Frontex as EU authority. Moreover, it is not easy for the persons whose rights are violated by the illegal pushback to identify who is actually acting unlawfully in the specific case under the EU flag. The command of the operation can lie with an EU Member State, a third country with a status agreement with the EBCGA or with Frontex itself.

The EU and the individual Member States are bound by the ECHR and the Charter of Fundamental Rights as well as EU law, i.e. regulations and directives. Cases brought before the ECJ must be referred to it by the Member States or by the European Commission, the so-called guardian of the Treaties and executive of the EU. The ECJ cannot take action itself on the basis of its own investigations. Since the EU member states currently have no great interest in the European border regime being permanently criticised by the ECJ, referrals to the ECJ on the basis of their own state investigations into Frontex do not take place. In the case of Croatia or Greece, the governments do not even admit that systematic or even individual pushbacks are taking place at all.

Thus, in order for a possible pushback by Frontex against individuals who are on a boat heading towards EU territory to be heard in Luxembourg – the seat of the ECJ –, the person concerned must first be able to prove his or her presence on the boat in question. Secondly, it must be clarified on which territory the pushback took place (usually not the biggest problem) and thirdly, this state must refer the case to the ECJ. 

Lack of clarity about who is actually responsible 

If the pushback took place on the high seas, i.e. not in the territorial waters of a state, then it must also be clarified on what basis Frontex was active there to protect the border. Frontex cannot be active without consultation with the EU Member State whose borders it secures; proceedings before the ECJ must then be initiated by the Member State on whose behalf Frontex was active here.

It is possible for the person concerned to lodge the complaint with Frontex itself. But here too, the evidence described above on the location, competence of the agency, etc. must be provided. Moreover, Frontex is at least ineffective in dealing with complaints.

Regardless of the possibilities and difficulties described above, it is even more complicated to file a lawsuit after a pushback from a third country.

Long and unrealistic legal action 

There are directives and regulations that bind EU member states to certain high standards, including in asylum policy. If rules, such as reception conditions, are violated by EU member states, either the European Commission initiates so-called infringement proceedings against the country to ensure that EU law is properly implemented, or a person suffering from the terrible conditions can initiate proceedings against the country in question for the suffering caused by the conditions. But again, they would have to go through the process of appeals, i.e. they would have to file a lawsuit in Germany with the locally competent administrative court, and if the lawsuit is dismissed, they would then go on to the competent higher administrative court, then to the Federal Administrative Court and the Federal Constitutional Court. Only then can the case be referred to the ECtHR, which looks at the case from a human rights perspective and examines whether a country has violated certain ECHR rights of the person bringing the action...

In such individual proceedings, the inhuman, degrading conditions on the ground to which claimants are subjected, e.g. in a reception centre, could be challenged.Although the ECJ takes ECtHR judgments into account as precedents, the EU is not a party to the ECHR, so human rights violations by EU actors cannot be heard by the ECtHR.

Why even third parties hardly have a chance to sue successfully

When it comes to third parties who know about a human rights violation, their chance as human rights defenders, civil society organisations or interested individuals to sue on behalf of the victim is also very low. In the first instance, Member States or the European Commission have access to the Court of Justice of the EU, while the European Court of Human Rights is only accessible once all national remedies have been exhausted. Access for third parties other than the elected legal representative of the persons alleging human rights violations is not allowed without the active participation of the person concerned.

Despite obvious violations of the law, those affected have little chance to sue

In reality, these complex legal constructions mean that people on the run hardly have a chance to accuse those responsible if their basic human rights have been violated. Precisely because refugees are not citizens of an EU state and their fundamental rights are not protected by their states of origin, which is why most of them have to flee in the first place, they are usually defenceless against pushbacks, violence and undignified treatment. The fundamental rights of the United Nations, adopted in the Universal Declaration of Human Rights, do not apply to these people in reality. Their dignity is violated on a daily basis and yet they have hardly any possibility to defend themselves legally. 

Photo: European Court of Human Rights © BY-SA 3.0, CherryX