By Emma Fregonese, European and International Law student
On December 18, the Court of Justice of the EU delivered its judgment on the appeal brought by Alaa Hamoudi, challenging the violent and sometimes deadly pushback practices prevalent in the joint operations of the Hellenic Coast Guard and Frontex in the Aegean Sea. The judgment provides a historical shift in the application of the burden of proof, ending the de facto immunity of Frontex and recognising the duty of the General Court to carry out further investigations whenever necessary to guarantee the protection of individuals’ rights.
Hamoudi disembarked on the Greek Samos island in April 2020 with 22 other people to request protection as an asylum seeker. However, the Greek police abducted them, confiscated their phones and reembarked them in unstable boats, then abandoned them at sea for 17 hours until the arrival of the Turkish coast guard, which brought them to Turkey and detained them with a pending expulsion order. At the time, two Frontex activities were ongoing in the area that very likely witnessed the illegal operation, with Hamoudi reporting that a Frontex aeroplane flew over the boat multiple times, without taking any action. The event, as Hamoudi stated in his claim, was also at the centre of an investigation by Bellingcat and Lighthouse Reports, among others.
In March 2022, Hamoudi filed a claim for compensation of non-material damages, namely the breach of several fundamental rights guaranteed by the EU Charter and the “feelings of injustice and frustration”, against Frontex before the Court of Justice of the EU. He also asked that the Court request Frontex to produce documents in its possession, which had already been partially leaked by the media, that would constitute relevant evidence of his refoulement. Based on the submission, the operation was carried out pursuant to the legally binding Operational Plan drafted by the Frontex Executive Director for RBI (Rapid Border Intervention) Aegean. Frontex should therefore be considered the “true author” of the collective pushback. Moreover, the submission highlights the fact that, under Regulation 2019/1896, the Frontex Director shall halt or terminate activities where there are grounds to believe that, in their context, fundamental rights have been or would be violated. In an interview with Rai3, representatives of front-LEX, the legal non-profit representing Alaa Hamoudi, stated that it is extremely likely that the activities of the Greek authorities were coordinated and possibly financed by Frontex as well, but this can only be confirmed if Frontex releases the documents at its disposal.
Initially, the claim was rejected by the General Court for lack of conclusive evidence, without any request for Frontex to share the documents in its possession. Hamoudi appealed the decision, reaching the Grand Chamber of the Court, which, on December 18, 2025, set aside the judgment of the General Court and referred the case back to it to complete the investigation. This new judgment is a key development in the protection of migrants’ rights, as it adapts the burden of proof, recognising the power imbalances between Frontex and migrants, ending the de facto immunity of Frontex stemming from the unrealistic expectation on migrants to be able to produce conclusive evidence.
The Court recognised that the first instance decision was in breach of the right to effective judicial protection due to the wrongful application of the rules on the burden of proof and on the taking of evidence.
Firstly, it recalled that Frontex is legally responsible for the activities it oversees and coordinates. The Frontex Regulation (Article 80 in particular) also requires the agency to ”guarantee the protection of fundamental rights in the performance of its tasks […] in particular the principle of non-refoulement”. Such a principle is recognised in various international law instruments, starting from the 1951 Geneva Convention (Article 33), and it prevents the expulsion of migrants to countries and territories where they would be subject to inhumane treatment or other threats to their life and freedom.
Then, moving to the core of the judgment, the Court found that requiring victims of a pushback to produce conclusive evidence of the violations they suffered would make the right to an effective remedy illusory, rendering Frontex de facto immune to judicial proceedings. Since the application of rules on the burden of proof cannot undermine the effectiveness of judicial protection, it must be adapted to the circumstances of each case. Namely, victims such as Hamoudi only need to produce prima facie evidence of the illicit conduct. The Court is then under an obligation to investigate further, using its powers to request any of the parties to produce the additional evidence at their disposal.
In the case at hand, Hamoudi stated that further evidence could be found in documents possessed by Frontex and inaccessible to others, namely correspondence, operational plans, and OLAF (European Anti-Fraud Office) and JORA (Joint Operations Reporting Application) reports. The OLAF report on Frontex in particular sparked interest in 2022, when Der Spiegel leaked it in its entirety. The document, an investigation by the EU anti-fraud office, attests that Frontex actively decided to relocate its aerial assets to avoid witnessing pushbacks at sea, and refrained from reporting the incidents for fear of member states’ reactions. JORA reports are used to register information regarding incidents witnessed by Frontex at the borders. The documents currently in the public domain report only a low number of witnessed incidents, and large parts are censored. Considering Frontex’s repeated denial of any involvement in violations of human rights, requiring greater transparency on its part is a crucial first step, not only because it allows the individuals whose rights have been violated to access justice effectively, but also because it enables civil society organisations to maintain control over a key EU agency with significant power over people whose rights are systematically undermined. This is one of the reasons why leaked documents do not suffice, and a duty upon Frontex to provide all the necessary documents must be recognised.
While the final decision has yet to come, this is a historical win for the protection of migrants’ rights, as it sets a precedent explicitly requiring the Court to not just dismiss their applications but to contrast existing power imbalances by supporting the collection of evidence.
The press release of the Court of Justice containing the summary of the judgment can be found here.
The documents of the proceedings can be found on the InfoCuria website.