Front-lex had in early 2022 taken the Warsaw-based agency to court following evidence by Bellingcat, a Dutch-based investigative outlet, of an alleged pushback of some 22 people off the Greek island of Samos in April of 2020.

Bellingcat had obtained digital evidence, including video footage of an Hellenic Coast Guard vessel leaving the raft adrift in the Aegean Sea. Their probe was later cited as credible in a report by the EU’s anti-fraud agency Olaf in its wider investigation into Frontex abuses.

And Cohen says his client, Syrian national Alaa Hamoudi, was among those 22 that were then pulled back to Turkey during the documented incidents that took place on 28 and 29 April, 2020. A screenshot of the Bellingcat video footage shows a bearded Alaa looking down into this phone.

But the judges dismissed the photo and video as evidence amid claims it was not possible to distinguish the gender.

“The person indicated is wearing a hoodie, which covers a large part of his or her head, and is not looking directly at the camera in any of the screenshots,” said judges, who later dismissed the case against Frontex in December of last year and demanded Hamoudi pay all legal fees.

Front-lex is now appealing, in the hope that the European Court of Justice (ECJ) will overturn the European General Court decision.

Cohen says the obfuscation over the screenshot is only part of the story, noting that the judges had also dismissed the veracity of the Bellingcat investigation and its significance in the Olaf report against Frontex.

At the time, the Olaf report had not yet been leaked to the wider public. But Cohen says he had demanded the court obtain full access to the Olaf report, given the Bellingcat investigation.

“I can tell you never in my life in Israel, such a thing would have happened, you know, just ignoring the most compelling evidence of the European Union’s very own anti-fraud office establishing the credibility of the specific case alleged by the applicant,” said Cohen.

Judges wary of ruling on Frontex operations

Similar frustrations were voiced by Dr Joyce De Coninck, a post-doctoral fellow at the Ghent European Law Institute, part of Ghent University.

“The General Court seems to pull out all sorts of stops to avoid assessing whether Frontex conduct and its contribution to these operations has given rise to a fundamental rights violations,” she said.

De Coninck says the court avoids looking into the merits of such cases, because it would go beyond what has been coded into EU legislation. As for Hamoudi, the outcome is deplorable, she said.

“If what Hamoudi brings forward is even remotely true, it’s unfathomable how he would have been able to prove an illegal covert mission,” she said.

She says it’s unreasonable to think that someone on a raft in the middle of the night, whose phone had been taken, is going to have the reflex to document everything.

And she also took issue with the court argument highlighting inconsistencies in Hamoudi testimonies, noting traumatised people are not going to remember minute details a year after the alleged pushback.

There are also other factors at play, spanning concepts of shared responsibilities when it comes to Frontex acting as a subsidiary of the hosting member state.

“I think that permeates into what the court does. It’s very cautious about getting to the point where they’re actually assessing the conduct of Frontex in operational settings,” she said.

Case law at the European Court of Human Rights in Strasbourg is more clear about the burden standard and method of proof in these types of scenarios, she said.

The Strasbourg court says the burden standard must be at least shared when public authorities exercise a dominant power and when the applicant is in particularly vulnerable situation with no means to prove the claim.

But in this case, the General Court tossed out evidence altogether without clarifying what it means to have “conclusive” evidence. De Coninck says she hopes the appeal lodged at the ECJ would now at least make such evidentiary standards more clear, including who bears the burden of proof, what the standard of proof is and what the methods are that can be relied upon to provide proof.

Frontex did not respond, as of publication, to emailed questions regarding the case.