Opinion of the Advocate General — ECLI:EU:C:2025:257
Date: 2025-04-10
Language of the case: English

summary expulsions at its Melilla (Spain) border. That government contested, however, the applicants’ participation in the events in question. The ECtHR considered that the applicants had presented prima facie evidence of that participation and assumed the truth of the account of the facts presented by the applicants. The ECtHR relied not only on the consistency of the evidence provided by the applicants, but also on the fact that the respondent governments did not dispute the existence of the expulsions at issue. That court also underscored that ‘the absence of identification and personalised treatment by the authorities of the respondent State in the present case, which has contributed to the difficulty experienced by the applicants in adducing evidence of their involvement in the events in question, is at the very core of the applicants’ complaint. Accordingly, the Court will seek to ascertain whether the applicants have furnished prima facie evidence in support of their version of events. If that is the case, the burden of proof should shift to the Government’. 74 See the judgment in A.R.E. (§ 204) and the decision in G.R.J. (§ 169). The text of the former (§§ 204 to 221 and 226 to 229) corresponds to that of the latter (§§ 169 to 186 and 187 to 190). 75 The degree of conviction required to reach a particular conclusion and the allocation of the burden of proof are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the ECHR right in question. The ECtHR is free to assess the probative value of each piece of evidence in the file (see the judgment in A.R.E, § 212). 76 Ibid., § 214. See, also, the judgment in N.D. and N.T. v. Spain (§§ 85 and 86) and the judgment in M.H. and Others v. Croatia (§ 268). 77 The ECtHR had previously found the applicant’s claim that her mobile phone had been confiscated and destroyed by the Greek authorities credible in the light of the information contained in several reports from national and international institutions (the judgment in A.R.E, § 253). 78 The ECtHR found that there had been a violation of Article 3 ECHR and of Article 13 ECHR in conjunction with Article 3 thereof by reason of the applicant’s refoulement to Türkiye, that there had been a violation of Article 5(1), (2) and (4) ECHR by reason of the applicant’s detention prior to her refoulement to Türkiye, and that there had been a violation of Article 13 ECHR in conjunction with Articles 2 and 3 thereof given the risk to life and ill-treatment at the time of refoulement. 79 This matter was also discussed by the parties at the hearing on 4 February 2025. 80 In the judgment in A.R.E., the ECtHR concluded that at the time of the alleged facts there was a systematic practice by the Greek authorities of returning third-country nationals from the Evros region to Türkiye. The Greek Government did not succeed in refuting the evidence which suggested the existence of such a practice by providing a satisfactory and convincing alternative explanation (§ 228). 81 The ECtHR held that Ms A.R.E’s detailed, specific and consistent account largely corresponded to the modus operandi found in the reports of the competent national and international institutions on refoulement from the region of Evros to Türkiye. That fact was not, however, sufficient to prove her refoulement. In addition, the applicant had to show that she had entered Greece and had found herself in Türkiye on the alleged dates and to establish a link between those two facts in order to establish that the alleged refoulement was genuine. The ECtHR underscored that it does not lose sight of the fact that it is extremely difficult to adduce that evidence due to the inherently secret and unofficial nature of the conduct in question (the judgment in A.R.E., § 230). See, however, the decision in G.R.J. (§§ 187 to 225), in which, despite the existence of a fairly uniform modus operandi of refoulement of foreign nationals seeking asylum from the Evros region and the Greek Islands by the Greek authorities at the relevant time, and the fact that the applicant’s account largely corresponded to that modus operandi, the ECtHR had strong doubts as to the credibility of his account in the light of certain evidence adduced by him to corroborate it. The ECtHR considered that the applicant’s allegations were at times contradictory and inconsistent. That court thus held that the applicant had not adduced prima facie evidence of his presence in Greece and refoulement to Türkiye from the island of Samos on the alleged dates and that he could not therefore claim to be a victim within the meaning of Article 34 ECHR (the decision in G.R.J., §§ 199 to 225). 82 The ECtHR held that documentary evidence drawn up by another Member State of the Council of Europe – in that case, Türkiye – detailing Ms A.R.E.’s abscondment to Greece on 4 May 2019 and refoulement to Türkiye on 5 May 2019 constituted prima facie evidence substantiating her version of events, which the Greek Government did not succeed in rebutting (the judgment in A.R.E., §§ 219 and 241). The ECtHR attached great importance to the decision of the Izmir Criminal Court delivered on 6 May 2019 detailing Ms A.R.E.’s refoulement in establishing the facts in that case (ibid., § 235). 83 While the authenticity of this form of evidence produced was disputed by the Greek Government, the ECtHR held that it corresponded to the overall account of the applicant (ibid., § 250). The ECtHR also took into account witness testimony which converged on crucial points with, and was supported by, the audiovisual material produced and thereby corroborated the applicant’s account (ibid., § 264). 84 See, by analogy, Opinion of Advocate General Mengozzi in Meister (C‑415/10, EU:C:2012:8, point 34). 85 Judgments of 24 March 1988, Commission v Italy (104/86, EU:C:1988:171, paragraph 11), and of 4 July 2024, EUIPO v KD (C‑5/23 P, EU:C:2024:575, paragraph 47). 86 See, by analogy, judgment of 10 April 2014, Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 80, 81, 92 and 98). 87 See Opinion of Advocate General Pitruzzella in Harman International Industries (C‑175/21, EU:C:2022:481, point 91). See, also, Opinion of Advocate General Campos Sánchez-Bordona in Commission v Germany (C‑482/14, EU:C:2016:368, point 96). 88 The Court should not intervene in such cases and the normal rules on the burden of proof should apply. 89 Indeed, intervention may extend beyond the question of distribution of the burden of proof. See ECtHR, 9 October 1979, Airey v. Ireland (CE:ECHR:1979:1009JUD000628973), on the right to legal aid in civil cases. See, also, Article 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1), Article 11(4) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1) and judgment of 15 March 2018, North East Pylon Pressure Campaign and Sheehy (C‑470/16, EU:C:2018:185), on the requirement that certain judicial proceedings in the field of the environment not be prohibitively expensive. The rules of procedure of courts may also be adapted to protect vulnerable parties such as minors and in order to obtain their testimony. 90 See points 30 to 34 of the present Opinion on the case-law of the Court and EU legislation on anti-discrimination and the burden of proof. See, also, points 40 to 50 of the present Opinion on the case-law of the ECtHR on secret detention and collective expulsions. 91 Thereby demonstrating that he or she is a victim of the collective expulsion in question. Strong evidence that there was a systematic practice of refoulement at the relevant time and place is insufficient in itself. See the decision in G.R.J. (§§ 225 and 226). 92 See, by analogy, the decision in G.R.J. 93 These are two autonomous but logically linked subconditions. 94 There is admittedly a certain degree of overlap between the second and third conditions. However, both should be met in full in order to reverse the burden of proof ‘normally’ on a claimant. 95 And the case-law thereon. 96 If the present proceedings related to the actions of a Member State, I believe the line of reasoning outlined by the ECtHR, inter alia, in its judgment in A.R.E., would, in principle, be applicable. Where a claimant adduces prima facie evidence that he or she was the victim of a collective expulsion by a Member State, the burden of proof would be reversed and placed on the latter. The Member State would be presumed to be in a position to refute the claimant’s allegations and it would be incumbent on the Member State to provide a satisfactory and convincing explanation of events that lie wholly or largely within its exclusive knowledge. 97 See, a contrario, the judgment in J.K. and Others v. Sweden (§ 98), in which the ECtHR stated, in the context of the expulsion of an asylum applicant, that national authorities may be considered to have ‘full access to information’ relating to the objective situation in the country of origin concerned. 98 In particular, when compared to the alleged role of the Greek authorities in the events. 99 See the order under appeal, paragraphs 39 and 62.