Thursday 22 February 2024

Research Event on Subsidiarity and Human Rights in the EU and the ECtHR

On Tuesday 19 March 2024 from 16:00 to 17:30 CET, the Hertie School Centre for Fundamental Rights is hosting a research event entitled 'The soul of Europe in the balance? Subsidiarity and human rights in the EU and the ECHR'. The research presentation will be given by Andreas Føllesdal (University of Oslo) and will be chaired by Joseph Finnerty (Hertie School). Here is a short description of the event:

'What is at stake if the EU accedes to the European Convention on Human Rights (ECHR) and becomes subject its Court – as required by the Treaty on European Union Article 6? We might expect no conflicts between the human rights protection by the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU): The EU is committed to a Charter of Fundamental Rights which requires the CJEU to abide by ECHR standards and ECtHR jurisprudence (52.3). The ECtHR’s ‘Bosphorus Doctrine’ assumes that states comply with the ECHR when they implement EU legislation. And the term ‘subsidiarity’ appears in the treaties of both. Yet the CJEU objected to the draft accession treaty, and the ECtHR appears to foresee some such conflicts.

The presentation argues that appeals to subsidiarity will not alleviate the tensions, because the two treaties as interpreted by their courts have different primary objectives. Arguments from subsidiarity do not indicate which of those objectives to privilege in order to harmonize the treaties. Important value laden choices remain concerning how to ‘balance’ and order the various valuable objectives. It seems ill advised to leave those choices to any one of the international courts.'

You can register here. The registration deadline is 11 March 2024.

Wednesday 14 February 2024

New ECHR Readings

Please find below our newest selection of academic publications covering the ECHR and the European Court of Human Rights. Enjoy reading!

* Ryan Goss, ‘The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze’, Human Rights Law Review (2023):

‘This article critiques the European Court of Human Rights’ recent extensive case law on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), and particularly the right to legal assistance in criminal trials. The article examines the significant and ongoing impact of the judgments in Ibrahim (2016) and Beuze (2018) and argues that the recent case law reflects buyer’s remorse on the part of the Court for its landmark judgment in Salduz (2008). Article 6 is among the most heavily litigated provisions of the ECHR, and this article is the first extended scholarly analysis of the post-Beuze case law. The article identifies two interrelated trends in the most recent case law: first, the Court taking a number of analytical steps that allow it to overlook the text of Article 6(3) in favour of an impressionistic assessment of the overall fairness of the proceedings; and, second, the Court providing Governments with multiple opportunities to advance public interest justification arguments despite continued pronouncements that Article 6 is an unqualified right. The article suggests that the jurisprudence is weakening the Article 6 guarantees.’

* Katie Morris, ‘Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR’, Human Rights Law Review (2023):

‘Vulnerability analysis serves a distinct purpose within adjudication of Article 3 of the European Convention of Human Rights ('ECHR'), in that it has been used by the European Court of Human Rights (‘ECtHR’ or ‘the Court’) to lower the threshold for a finding of ill-treatment from which positive obligations relating to socioeconomic rights have arisen. However, the group-based notion of vulnerability invoked by the Court is extremely limited, producing minimal protection from deprivation whilst equally paternalizing and essentializing the populations it deems vulnerable. In light of these failings, this article proposes a new element to be incorporated within the Court’s vulnerability analysis which can deliver greater protection of socioeconomic rights via Article 3: the political theory of care. By highlighting care’s potential to transform the concepts of vulnerability and state responsibility whilst empowering the care-receiver, it argues that care can overcome the limitations of the Court’s current approach as a means of targeting destitution.’

* Maciej Oksztulski, Maciej Perkowski, & Wojciech Zoń, ‘Autistic Persons in the Labour Market in the Light of ECtHR Case-law’, International Community Law Review (2023):

‘The European acquis on the protection of human rights is indisputable. This also applies to the case-law of the European Court of Human Rights. However, this acquis is not extensive enough to cover all the problems Europeans have. The aim of this article is to establish the status quo in the area of anti-discrimination against persons on the autism spectrum in the labour market, taking into account the related Strasbourg jurisprudence in question, as a starting point for potential proceedings (in this area) before the European Court of Human Rights. Currently, the body of doctrine in this area is not extensive, and the increasing number of diagnosed cases of autism may in the future necessitate a deeper reflection on the guarantees provided by international law. The article will generally characterise autism, discuss ECtHR jurisprudence relating to persons with disabilities and (briefly) the right to work, discuss the labour market participation of persons on the autism spectrum in selected countries as a challenge to jurisprudence, and present a conclusion.’

* Jakub J. Czepek, ‘ECtHR Case-law Concerning Russian Aggression on Ukraine and the Events Taking Place after 2014’, International Community Law Review (2023):

‘Ukraine has faced ongoing armed conflict within the eastern parts of its territory since 2014. The state witnessed the annexation of Crimea, de facto occupation of Donetsk and Lugansk regions, the shooting down of Flight MH-17, and numerous human rights violations in the eastern parts of the country. Since the Russian aggression in 2022, Ukraine has faced armed conflict throughout the country. At the same time, Russia and Ukraine had been states parties to the European Convention on Human Rights (ECHR). Russia ceased to be a party to the ECHR on 16 September 2022, due to its expulsion from the Council of Europe (CoE) six months earlier. All the applications against the Russian Federation filed to the European Court on Human Rights (ECtHR) before this date should – and will – be examined by the Court. This research mainly aims to analyse the Court’s existing case-law concerning the events in Ukraine after 2014, and the ECtHR jurisprudence concerning armed conflicts. The purpose of such analysis is to examine the possibilities and challenges the Court will face in its forthcoming judgments in inter-state applications filed by Ukraine against Russia. It should be stressed that the execution of these future judgments may also be an issue.’

* Bartosz Ziemblicki, ‘Modern Technologies as a Challenge for the Right to Privacy under the European Convention on Human Rights’, International Community Law Review (2023):

‘The paper explores the right to privacy as a human right and its contemporary challenges in the digital age. It discusses the definition of privacy, its recognition in international human rights documents, and the wording of the right to privacy in the European Convention on Human Rights (ECHR). The article highlights the increasing difficulty of protecting privacy in the digital age and the potential threats posed by modern technologies. It also examines the balance between the right to privacy and freedom of expression, particularly on the internet, citing relevant case law from the European Court of Human Rights (ECtHR). Furthermore, the article discusses mass surveillance and the protection of personal data as a component of the right to privacy. It emphasizes the importance of effectively enforcing the right to privacy to protect individuals and societies.’

* Antonio Mariconda, ‘Victim Status of Individuals in Climate Change Litigation before the ECtHR: Between Old Certainties and New Challenges’, Italian Review of International and Comparative Law (2023):

‘The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.’

* Andrew Drzemczewski & Rick Lawson, ‘Exclusion of the Russian Federation from the Council of Europe and the ECHR: an Overview’, Baltic Yearbook of International Law (2022).

* Paul Gragl & Christian Breitler, ‘The Past, Present, and Future of European Inter-State Disputes: A Modest Proposal for Reconciling Inter-State Cases in the Context of EU Accession to the ECHR’, The Law and Practice of International Courts and Tribunals (2023):

‘The last few decades have seen a rise in inter-State cases before the international/supranational European courts, i.e., the European Court of Human Rights and the Court of Justice of the European Union, respectively. This article therefore examines why this particular procedure is challenging for both courts, especially due to potential overlaps in State actors/respondents as well as substantive questions in light of the EU’s planned accession to the ECHR. The EU’s tight jurisdictional corset found in Article 344 TFEU will, in particular, prove to be a considerable issue here. Lastly, possible solutions to these problems will be presented for a future scenario after the Union’s accession to the ECHR, when it will be formally bound by the ECHR and the judgments of the ECtHR.’

* Kanstantsin Dzehtsiarou, ‘Keep Me in the Loop: Feedback Exchange between the European Court of Human Rights and States’, The Law and Practice of International Courts and Tribunals (2023):

‘This article applied the theory of “Voice and Exit” developed by Hirschman to the European Court of Human Rights’ (ECtHR or Court) interaction with its member States. According to this theory, if the organisation cannot be changed through Voice, the Exit of its members is more likely. This article argues that there are avenues for the Contracting Parties to the European Convention on Human Rights (ECHR) to Voice their concerns to the ECtHR, however it is important that the Court reacts to these concerns through feedback loops. The feedback loops do not come without a cost and the Court needs to be cognisant of their dangers. The article applies this framework to existing practices of the ECtHR and considers whether the Court used the feedback loops that have already been developed with maximum efficiency. This article establishes a typology of feedback loops and explains how they are operationalised by the ECtHR in practice.’

* Agne Limante, ‘Protecting vulnerable groups in Europe: highlights from recent case law of the European Court of Human Rights’, The International Journal of Human Rights (2023):

‘This paper focuses on the recent cases of the European Court of Human Rights (the ECtHR, the Court) in which the Court offered legal protection to vulnerable groups. For this purpose, the paper will first discuss the vulnerability paradigm before the ECtHR and draw the list of groups recognised by the Court as vulnerable. It will then turn to the case law to trace the recent trends and developments in the Court’s focus when protecting vulnerable groups. In particular, the research covers the Court judgements rendered in the last four years (from 1 January 2019 to 31 December 2022).’

Thursday 8 February 2024

Conference: Activating the Protection of Fundamental and Human Rights at European Level

On Thursday 7 March and Friday 8 March 2024, the Law Department of the College of Europe and the Institute for European Law of KU Leuven/RESHUFFLE project are organizing a high-level conference entitled 'Activating the Protection of Fundamental and Human Rights at European Level'. The conference will focus on the role played by the Court of Justice of the European Union and the European Court of Human Rights of the Council of Europe in protecting human rights in Europe. 

Here is a short description of the event:

'There is growing awareness that the European Union, next to the Council of Europe, is playing an active role in the protection of human rights in Europe.
The two Courts (the European Court of Human Rights of the Council of Europe (‘ECtHR’) & the Court of Justice of the European Union (‘CJEU’) thus often act side-by-side to protect Europe’s most cherished rights. This event will shed light on the procedural tools available before each of them to enhance the protection of ‘human rights’, in the language of the ECtHR, and of ‘fundamental rights’, in the language of EU law. What are the respective strengths and weaknesses of each of the two judicial systems when it comes to actually activating them? While research on substantive law showing complementarities as well as differences between the two approaches is growing, there is still very little analysis of the procedural features of the emerging European law of fundamental and human rights. This event and the publication that will result therefrom are intended to bridge this gap in a context characterised by the revival of prospects of accession by the EU to the ECHR.'

The programme can be found here. You can submit your registration here

Tuesday 6 February 2024

Book Launch: Positive Obligations under the ECHR

On Wednesday 21 February 2024, from 17:30 to 19:00 CET, the Bonavero Institute of Human Rights of Oxford University is hosting a book launch for the new book 'Positive Obligations under the European Convention on Human Rights', authored by Vladislava Stoyanova (Associate Professor of Public International Law at the Faculty of Law, Lund University) and published with Oxford University Press. The event will be joined by Sandy Steel (Professor of Law and Philosophy of Law in the Faculty of Law at Oxford University), Helen Mountfield KC (Principal of Mansfield College and Barrister at Matrix Chambers) and Ed Bates (Associate Professor at the University of Leicester). The event will be chaired by Başak Çalı (Head of Research at the Bonavero Institute of Human Rights and professor of International Law in the Faculty of Law at the University of Oxford). 

Here is a short description of the book:

'Positive Obligations under the European Convention on Human Rights provides novel insight into the elements underlying a state's responsibility to fulfil positive obligations and offers the first examination of the conceptual hurdles of applying positive human rights obligations extraterritorially.  It further clarifies European Court of Human Rights doctrine to empower better reasoning and outcomes across the diverse fields in which positive obligations apply. It is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply.'

You can register here for the event.

Tuesday 30 January 2024

Three New Judges and Commissioner Elected

Last week, the Parliamentary Assembly of the Council of Europe (PACE) had a busy week in many respects, including in terms of elections. No less than three new judges were elected to the European Court of Human Rights. In addition, a new Commissioner for Human Rights was elected.

Stéphane Pisani was elected as judge to the European Court of Human Rights in respect of Luxembourg. He is a deputy Judge at the Administrative Tribunal and a deputy member of the Judicial Disciplinary Court of Luxembourg. He is also a member of the Superior Courts Network attached to the ECHR and has taught legal professionals about human rights. In the past, he was seconded to the registry of the Court.

Diana Petrova Kovacheva was elected as judge to the European Court of Human Rights in respect of Bulgaria. She is currently the Ombudsman (sic) of Bulgaria as well as a professor of international law and international relations. In the past, she also served as Minister of Justice and worked for various civil society organisations, specifically on anti-corruption.

Gediminas Sagatys was elected as judge in respect of Lithuania. For over a decade, judge Sagatys has been serving as a judge in Lithuania's Supreme Court. He is currently also the President of the Association of Judges of Lithuania. Previously, he has been a practising lawyer, academic, and legal advisor for the legislative and the executive in his country. He received his PhD on an ECHR-focused topic, 'The Right of the Child to Family Relations in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Law of the Republic of Lithuania. His election brings to conclusion a long, bumpy process after PACE had rejected the original list of three candidates in 2022 and the national pre-selection had to be redone.

Finally, Michael O'Flaherty, was elected as the new Commissioner for Human Rights. With his vast expertise in human rights, working in various capacities for both, academia, an NHRI (Northern Ireland Human Rights Commission), the United Nations (as member of the Human Rights Committee) and the European Union, where he led the Fundamental Rights Agency (FRA) for many years until very recently, he knows the global and European Human Rights ecosystems in and out. He will succeed the current Commissioner Dunja Mijatovic, who has been a very strong voice for human rights, for a six-year, non-renewable term on 1 April 2024. Within the ECHR system, the Commissioner has a right, as Article 36 of the Convention provides, to submit a third party intervention and take part in hearings in cases before the Court.

Congratulations to all of them!

Sunday 28 January 2024

Annual Press Conference of the Court's President

On Thursday 25 January 2024, the President of the ECtHR Síofra O’Leary held a press conference during which the results of the Court's activities and statistics for the year 2023 were presented. 

President O'Leary began the conference by stating that in the year 2023, the ECtHR progressed considerably in processing pending Inter-State cases relating to the conflict in Ukraine. A hearing on the merits took place in the Inter-State case between Ukraine and Russia concerning Crimea, and preparations for another hearing on admissibility and merits in three Inter-State cases against Russia (concerning events in Eastern Ukraine from 2014 until 2022 and the downing of flight MH17) is scheduled to take place this year. 

During the press conference President O'Leary spoke about some important events that happened in the past year. These include, among others, the adoption of the Reykjavik Declaration following the 4th Summit of Heads of State and Government of the Council of Europe in May 2023, the 75th anniversary of the Universal Declaration of Human Rights and the 70th anniversary of the entry into force of the Convention.

The President then presented some statistics on the activities of the Court in 2023. Again, 2023 was a year in which the Court was extremely active: it issued a total of 1014 judgments. The number of pending applications has decreased significantly by the end of 2023 (68,450 compared to 74,650 by the end of 2022). All statistical information about the activities of the Court is included in the Court's latest annual report

The opening speech by the President can be found here. A video of the press conference is available here

Tuesday 23 January 2024

Updated Rules of Court on Recusal of Judges

Yesterday, 22 January, the newest version of the Rules of Court entered into force. Decided by the Plenary of the Court in December, they are part of a series of internal procedural reforms, also related to the Rules of Court, as we reported earlier here.

The newest change relates to Rule 28, on the recusal of judges in procedures at the European Court of Human Rights. The new Rule provides as follows:

Rule 28 – Inability to sit and recusal

1. A judge has the duty to sit in all cases assigned to him or her, unless, for the reasons set out in paragraph 2, he or she may not take part in the consideration of the case.

2. A judge may not take part in the consideration of any case if
(a) he or she has a personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;
(b) he or she has previously acted in the case, whether as the Agent, advocate or adviser of a party or of a person having an interest in the case, or as a member of another national or international tribunal or commission of inquiry, or in any other capacity;
(c) he or she, being an ad hoc judge or a former elected judge continuing to sit by virtue of Rule 26 § 3, engages in any political or administrative activity or any professional activity which is incompatible with his or her independence or impartiality;
(d) he or she has expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that are objectively capable of adversely affecting his or her impartiality;
(e) for any other reason, his or her independence or impartiality may legitimately be called into doubt.

3. Any judge who considers himself or herself to be unable to sit in a case to which he or she has been assigned, for one of the reasons listed in paragraph 2 shall, as soon as possible, in cases allocated to a Committee or Chamber formation, give notice to the President of the Section, who will decide whether the judge concerned should be exempt from sitting. In the event of any doubt on the part of the judge concerned or the President as to the existence of one of the grounds referred to in paragraph 2 of this Rule, that issue shall be decided by the Chamber. After hearing the views of the judge concerned, the Chamber shall deliberate and vote, without that judge being present. For the purposes of the Chamber’s deliberations and vote on this issue, he or she shall be replaced by the first substitute judge in the Chamber. The same shall apply if the judge sits in respect of any Contracting Party concerned in accordance with Rules 29 and 30.

4. Only parties to the proceedings may request recusal of a judge assigned to sit in their case for the reasons listed in paragraph 2 of this Rule. Any such request must be duly reasoned and lodged as soon as possible after the party concerned learns about the existence of such reasons. It shall be decided by the Chamber in accordance with the procedure described in paragraph 3 of the present Rule. The parties shall be informed whether or not their request has been accepted.

5. The provisions above shall apply, mutatis mutandis, in cases before the Grand Chamber, and – under the authority of the President of the Court – to judges acting as a single judge under Article 27 of the Convention and as duty judge in accordance with Rule 39 of the Rules of Court.

The background of the change is a further strengthening of judicial impartiality as a foundation for the rule of law, human rights, and the good administration of justice, as the President of the Court explains in an accompanying practice direction. It expressly codifies an already existing practice. 

Complementing this change, a full list of the different judicial formations operating within each of the five Sections, including the list of single judges designated by State, have been made public on the website of the Court. This way, parties in proceedings will be able to know more easily  which judges will sit on their case. The current changes were made after consultation with the Contracting Parties, organisations with experience in representing applicants, and several bar associations. 

For critical observers of the Court, the degree to which the Court itself aligns its practice with the guarantees of the right to a fair trial under Article 6 ECHR, which binds the Contracting Parties but not the Court itself, has always been a sticky point. This especially applies to length of proceedings - something which, by the way, is not mainly in the hands of the Courts, as it very much depends on means provided by the States. But for this other aspect, recusal of judges, safeguards for a fair trial have now been further strengthened.

The full text of the Rules of Court can be found here and more background information, translations and practice directions can be found on a dedicated page on the Court's website.

Monday 22 January 2024

New Session of MOOC on ECHR Starts Again on 10 February

On 10 February 2024 Utrecht University's free Massive Open Online Course (MOOC) on the ECHR will start again! Registration is open now. To enroll, please go to the Coursera platform. 

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:

Wednesday 10 January 2024

Webinar on 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'

On 10 January at 14:00 CET, the Human Rights Centre of Ghent University is organizing a webinar launching the new special issue of the ECHR Law Review entitled 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'. The contributors to the special issue will present their research articles, followed by a discussion and general Q&A. The webinar will discuss questions such as: how does evidence work at the European Court of Human Rights? How does the adoption of a particular standard of proof impact the outcome of cases? Is the burden of proof distributed appropriately between the parties? And when does the Court (not) consider facts established?

This is the programme:

14:00 Nele Schuldt (DISSECT) Welcome and introduction

14:10 Marie-Benedicte Dembour (DISSECT) 'Beyond Reasonable Doubt at its Worst but also at its Potential Best: Ireland v the United Kingdom’s No-Torture Finding Dissected'

Discussant: Vassilis Tzevelekos (ECHR Law Review)

14:40 Kristin Henrard (Brussels School of Governance) 'The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases: The Search for Fairness continues'

Discussant: Kanstantsin Dzehtsiarou (ECHR Law Review)

15:10 Break

15:15 Joseph Finnerty (Hertie School) 'When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law'

Discussant: Corina Heri (University of Zurich)

15:45 Grażyna Baranowska (Hertie School) 'Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong'

Discussant: Violeta Moreno-Lax (Queen Mary University of London and University of Barcelona)

16:15 Break

16:20 Anne-Katrin Speck (DISSECT) General remarks, followed by general Q&A

17:00 End of the proceedings

You can register here

Tuesday 9 January 2024

New Special Issue ECHR Law Review

Right before Christmas the last issue of 2023 of the ECHR Law Review  was published (Vol. 4, issue 4). This special issue, edited by Marie-Benedicte Dembour (Human Rights Centre, Ghent University), looks at the way evidence works at the European Court of Human Rights. The issue contains one editorial and four research articles. This is the table of contents:

* Marie-Bénédicte Dembour, 'The Evidentiary System of the European Court of Human Rights in Critical Perspective'

* Marie-Bénédicte Dembour, 'Beyond Reasonable Doubt at its Worst – But Also at its Potential Best: Dissecting Ireland v the United Kingdom’s No-Torture Finding'

* Kristin Henrard, 'The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases: The Search for Fairness Continues'

* Joseph Finnerty, 'When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law'

* Grażyna Baranowska, 'Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong'