What’s beneath the iceberg in M.A. and Z.R. v Cyprus? The erasure of pushback evidence at borders

Guest post by Jill Alpes and Grażyna Baranowska. Jill Alpes is PI of “Removal infrastructures of Syrians in Lebanon and Turkey” hosted by the International Institute of Social Studies at Erasmus University Rotterdam and the Institute for Migration Studies at the Lebanese American University. She is also a former member of the ERC-funded DISSECT research group on evidence in international human rights adjudication at the Human Rights Centre at Ghent University.  Grażyna Baranowska is a Professor of Migration Law and Human Rights at the Friedrich-Alexander-Universität Erlangen-Nürnberg. 

In the weeks around M.A. and Z.R.'s asylum attempt, Cypriot coastguards pushed back at least 15 other boats, mostly with Syrians, to Lebanon. It is very difficult to establish contact with pushback survivors, both during and after incidents. After five months of networking to connect with other pushback survivors, interviewing, and traveling across Lebanon during the height of COVID, Alpes collected 28 signatures for applications at the ECtHR. She then posted 28 signed forms to M.A. and Z.R.'s lawyer in Cyprus, who filed 28 complaints about Cypriot pushbacks at the ECtHR. The ECtHR registry, however, refused to register 26 out of our 28 applications.  

The refusal letter explained that “there [was] no official confirmation of the alleged government action having taken place.”  The applications clearly stated, however, that the Cypriot state had failed both to issue expulsion decisions and to record the applicants’ wish to apply for asylum. The applications of the 26 pushback survivors were thus rejected because documents that did not exist had not been submitted. Why did the ECtHR only register M.A. and Z.R.? 

Focusing on the erasure of pushback evidence at borders, this blog post explains why out of the 28 submitted applications only M.A. and Z.R.s applications were registered by the ECtHR. In our Law and Social Inquiry article “The Politics of legal facts: The erasure of pushback evidence at the ECtHR”, we unravel the Court’s bias in favour of state-produced evidence. The Court predominantly accepts pushback evidence for border incidents where states had fulfilled at least to some degree their documentary obligations. Most pushbacks at European borders, however, occur in an informal manner with states not carrying out any paperwork at all. We propose to read M.A. and Z.R. against Cyprus in the light of these findings. 

The tip of the iceberg: Why did the Court only register the application of M.A. and Z.R.? 

The Court registered M.A. and Z.R. only because an exceptional chain of circumstances established facts about Cypriot government action. M.A. and Z.R. had a relative on Cyprus. While being held on the boat at Cyprus shores, they managed to call this relative with their Lebanese sim cards in the Cypriot mobile phone network. In turn, the relative was able to reach out to a Cypriot NGO, KISA. The help of KISA was crucial to then establish contact with a lawyer, who immediately requested interim measures at the ECtHR, asking Cypriot authorities not to return M.A. and Z.R. to Lebanon.  

As we unpack in greater detail in our article, the Court did not immediately grant the measures, but decided to “suspend the examination […] until receipt of information from the respondent Government.” By the time the Cypriot government had submitted this information, coastguard officers had already put MA. And Z.R. onto a boat headed back to Lebanon (par 21 and 22).  

The Cypriot state, however, is under an obligation to respond to questions from the Court. In doing so, Cyprus created official proof of an unofficial practice, namely the pushback. Thus, while the application for interim measures was not successful in putting a halt to the pushback, it created something else – evidence. Even if conditions for its creation were exceptional, the government’s response to the interim measure constituted “official confirmation of the alleged government action” and was thus crucial for the registration of the case. 

Erasure of Pushback Evidence at Borders

M.A. and Z.R. are the tip of the iceberg because of border regimes and the Court’s treatment of evidence. In our article, we argue that border regimes actively expunge pushback evidence from the historical record through three distinct mechanisms. First, the criminalization of civil society actors hinders access to justice and the creation of evidence about border violence. Second, gaps between the rapid pace of pushbacks, bureaucratic procedures and rules at the Court and the logistical challenges of establishing contact with pushback survivors often makes submissions impossible. Even the Court's interim measures intended to address urgent situations are usually too slow to actually prevent pushbacks. Third, state actors play an active role in eradicating pushback evidence at borders. 

With regards to the third mechanism of state erasure, we have distinguished between different tactics. Police officers do not fulfil their legal obligations to register individuals and duly record deprivations of liberty. State authorities control access of civil society actors and journalists to border areas, preventing them thus from recording what happens at borders. And finally, when people on the move, civil society actors and journalists nevertheless manage to produce evidence in this context, state actors also actively destroy it. In doing so, states significantly reduce the pool of evidence that litigators can submit to Strasbourg judges.  

As a collective of human rights organizations, a researcher and a litigator, we only had testimonies to submit as evidence to the Court in M.A. and Z.R. v Cyprus and the other 26 applications. The above-mentioned three mechanisms play a role in explaining why this was the case. First, the Cypriot NGO KISA is highly criminalized, and thus limited in its capacity to intervene when border incidents occur. Second, as a result of the speed of pushback operations only two out of hundreds of pushback victims managed to contact a Cypriot lawyer to request interim measures. Cypriot authorities tricked newly arrived asylum seekers onto boats headed for Lebanon within only hours of their arrival. Consequently, Alpes was able to establish contact with the 26 applicants only after their pushback to Lebanon. And although pushbacks were ongoing in that period, M.A. and Z.R.’s lawyer only received a phone call from two pushback victims prior to their pushback. Third, the Cypriot state had indeed taken active measures to prevent the production of evidence. Cyprus did not issue expulsion decisions, nor record the applicants’ wish to apply for asylum. It did not grant KISA access to the landing places where the boats had arrived. And, it confiscated phones when the applicants tried to make videos of their pushback.  

Conclusion

This blogpost discusses the case of M.A. and Z.R v Cyprus in a broader context of efforts by people on the move, civil society actors and journalists to produce and submit evidence about border violence to the ECtHR. The decision of the Court’s registry not to register additional 26 applications poses questions about the inherent logic and assumptions of how the Court comes to establish legal facts.  

Drawing on findings from our article on the politics of legal facts, we show the political dimension of the seemingly merely technical and legal procedures at the ECtHR. We do so by interweaving external perspectives on what is known about pushbacks with an internal analysis of evidence in judgments.  

When we connect law with anthropology, we can begin to see how the case of M.A. and Z.R. became visible to judges at the Court only because of an exceptional chain of circumstances. The interim measures for both applicants had obliged the Cypriot state to create formal evidence of an informal practice. 

This blog post has also been published on Netzwerk Fluchtforschung blog. 

This post relies on information collected during fieldwork conducted within the context of the Horizon 2020 research project “DISSECT: Evidence in International Human Rights Adjudication,” funded by the European Research Council through an Advanced Grant (no. ERC-AdvG-2018-834044). This project has also received funding from the European Union’s Horizon 2020 Research and Innovation Programme under the Marie Sklodowska-Curie Grant Agreement no. 101026079.