On 12 February 2025, the European Court of Human Rights (“the Court”) held hearings in three cases concerning collective expulsions: R.A. and Others v. Poland (42120/21), H.M.M. and Others v. Latvia (42165/21) and C.O.C.G. and Others v. Lithuania (17764/22). These cases included alleged migrant instrumentalisation and hybrid threats orchestrated by Belarus (and Russia) as a deliberate attack on the values and democracy of the Council of Europe. Among the different claims, all three cases invoked Articles 3 (prohibition of torture, degrading and ill-treatment) as well as Article 4 of Protocol 4 (prohibition of collective expulsion).
While the brilliance of the applicants’ oral submissions is unquestionable, two strategic perspectives they adopted – undoubtedly strengthening their chances of having their claims recognised – raise concerns about the implications for the future of the prohibition on collective expulsion: the implicit validation of the N.D. and N.T. v. Spain case and the understanding that Article 4 of Protocol 4 might not always be connected to the non-refoulement principle.
Before delving into a critical analysis of the implications above, it is important to consider that a lawyer’s primary task is not necessarily to challenge or alter the Court’s approach to case law but to advocate effectively for their client.
N.D. and N.T. v. Spain and the Culpable Conduct Test
Aside from the admissibility part, the legal arguments presented by the governments relied mainly on the culpable conduct test. While the facts of each case vary, all respondent governments referred to the precedent set in N.D. and N.T. v. Spain. In that case, the Grand Chamber ruled that the applicants put themselves in jeopardy when attempting to cross the border by taking advantage of the group’s size and using force, circumventing the established legal procedures for entering the territory without cogent reasons. (para. 231).
Poland, Latvia, and Lithuania argued that the applicants had legal paths to enter their territories but failed to use them without cogent reasons. To support this claim, government representatives detailed the available legal border crossings, access to embassies, and opportunities to apply for visas, including humanitarian ones. Notably, Latvia contended that the applicants intentionally exploited their numbers when crossing the border (1:00:42). Lithuania maintained that the applicant’s actions were not coincidental but took advantage of the broader context of instrumentalisation (19:55).
The line of reasoning chosen by the governments was highly predictable. Legal scholars had already anticipated such arguments, with Clara Bosch and Maja Lysienia discussing possible outcomes in their blog posts. Lysienia, for instance, suggested that while overturning the N.D. and N.T. test would be most desirable, it was highly unlikely. This scepticism is understandable, given that many scholars, such as Dana Schmalz and Maximilian Pichl, believe this judgment was a strategic response by the Court to mounting pressure from Member States on migration issues – pressure that continues rising.
No Direct Challenge of the N.D. and N.T. Frame and Legal Grounds
Before the hearings, reversing the N.D. and N.T. precedent seemed improbable; after the hearings, however, it appears out of the question. While the respondent governments firmly advocated upholding the precedent, the applicants did not challenge it. Instead, their legal representatives implicitly endorsed the previous Court’s approach, focusing only on distinguishing their present cases from N.D. and N.T. rather than contesting its legal grounds. This was particularly evident in Latvia’s case, where the applicants’ representative stated: ‘This case is nothing like N.D. and N.T., where a violent rush of hundreds of migrants created an immediate public danger’ (1:00:56).
When the N.D. and N.T. case was decided in 2020 by the Grand Chamber, its reasoning shocked many. Now, the problematic discourse employed by Spain – and later adopted by the Court – seems to have been normalised, even among those advocating for a progressive approach to human rights. In the cases against Latvia and Lithuania, the applicants’ representatives, to varying degrees, engaged with the narrative of migrants as potential threats. While they may not all have agreed explicitly that the N.D. and N.T. applicants were a threat to public order, they emphasised that those in the present cases were neither violent nor numerous. Such an implicit validation of the precedent would have been unthinkable a few years ago.
Legal scholars like Annick Pijnenburg had once argued that the facts in N.D. and N.T. were so clear-cut that it appeared unlikely the Chamber could have reached any other conclusion. This assertion was made before the case was referred to the Grand Chamber, where the decision was unanimously reversed, with no violation found. Since then, Chambers have applied the culpable conduct test in cases concerning collective expulsion, yet the Grand Chamber has not revisited it – until now. These cases on instrumentalisation were a crucial opportunity for the Court to address the legally flawed precedent, as Chiara Scissa and Francesco Luigi Gatta suggested.
Nevertheless, perhaps fearing an even broader application of the exception, no one attempted to reverse the precedent. If the applicants’ representatives strategically decided that the hearing was not the right time or place to focus on challenging N.D. and N.T., they could have alternatively presented a list of subsidiary arguments. First, clarify that they respectfully did not accept N.D. and N.T. as a well-founded precedent and invite the Court to revisit it. If the Court was not open to reconsidering it, argue that it was not a suitable comparison, given that the present cases involved credible Article 3 claims, whereas, in N.D. and N.T., such claims had been deemed inadmissible before the merits were even considered. This second statement was made in the case against Poland (56:07) and Latvia, in the latter only when answering the judges’ questions (2:13:54). Thirdly, the lack of safe and official entry could have been pointed out, as it was indeed done by all at some stage. Finally, and only if all other arguments were to be rejected by the Court, proceed with a direct rebuttal of the narrative of violence and high numbers to ensure that silence was not interpreted as implicit agreement with the government.
In the case against Lithuania, the applicants’ representative specifically requested the Court to set aside the Chamber’s interpretation of N.D. and N.T., which characterised migrants’ culpable conduct solely based on irregular entry (46:15). However, a direct request to overturn it in its entirety was not made.
Janna Wessels argues that governments appropriate human rights legal language to resist constraints on their authority over migration control. In these hearings, however, the applicants appeared to validate the security-driven political discourse in an effort to safeguard human rights in the circumstances at hand. While this might be understandable in the context of the three cases, it might also have the consequence of reinforcing the use of the migrants’ invasion of Europe narrative if a new 2015 refugee ‘reception crisis’ happens.
The Nature of Article 4 of Protocol 4
This leads to the discussion of Article 4 of Protocol 4 nature. In all three cases, Judge Bårdsen asked the parties whether a derogation declaration would have affected the outcome. In response, the applicants’ representatives provided two main arguments: first, that a derogation would not have made a difference due to the intrinsic connection between Article 3 and Article 4 of Protocol 4 in the specific cases; and second, that if only Article 4 of Protocol 4 were considered, any derogation would still have to meet the requirements of Article 15, including proportionality.
In the aftermath of the N.D. and N.T. judgment, Anna Lübbe posed a critical question: “How can one engage in hot returns and effectively guarantee Article 3 of the ECHR?”. According to the scholar, the Grand Chamber failed to address this issue, making it a misjudgment. Once again, the hearings of 12 February 2025 could have been the opportunity to reverse the precedent by arguing that Article 4 of Protocol 4 is always connected to Article 3. Therefore, its derogation would never be possible. This is because, although some applications to the Strasbourg Court might include a claim of collective expulsion without Article 3, governments can never know about these circumstances before making an individual and reasonable assessment of each migrant situation. Therefore, in theory, the observance of the prohibition of collective expulsion is always needed to prevent non-refoulement. In times of war or public emergencies, this guarantee might even be more critical to avoid placing migrants at risk.
The subsidiarity line of reasoning suggested before could also apply here. Instead, once again, the narrative of migrants as a potential threat was reflected in the applicants’ submission, where it was argued that a public emergency did not exist due to the low number of migrants. This raises the question of whether Article 4 of Protocol 4 could be disregarded if the number of migrants was higher, as seen in the past. Is this not precisely what the provision seeks to protect – the rights of a collective group of individuals, regardless of its numbers? Given the intrinsic connection between Article 3 and Article 4 of Protocol 4, does this imply that the latter also possesses an absolute nature? This is a question that warrants further exploration at another moment.
