ECtHR - N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, 13 February 2020

Facts:

The case revolves around the storming of border fences in Melilla, a Spanish enclave in the north of Morocco, and the immediate subsequent expulsion of the migrants involved. The applicants, N.D. and N.T., are Malian and Ivorian nationals respectively. In late 2012/early 2013, they arrived in Morocco, where they stayed in the informal camp on Mount Gurugu for close to a year. On 13 August 2014, they attempted to cross the border fences into Spain, along with 600 other migrants. They managed to escape the Moroccan police but got stuck on top of the inner fence and were helped down with ladders by the Spanish Guardia Civil. They were then immediately escorted back to Morocco by those same officers without any procedure, and transferred to the Nador police station before being taken to Fez and left there on their own.

The case was positively decided in a Chamber ruling in 2017, where the Court found that there had been a violation of Article 4 Protocol 4, due to the absence of administrative decisions and the lack of legal assistance and interpretation. The case was referred to the Grand Chamber in January 2018.

Decision & reasoning:

The government’s preliminary objections

On jurisdiction, the Court rejected the argument of an operational border on the basis that jurisdiction is primarily territorial and as such could be limited only in exceptional circumstances. In this regard, Spain referred to the “difficulty of managing illegal immigration in the Melilla enclave” but the Court held that it could not discern any reasons to believe that the effective exercise of Spanish authority was restricted. The objection was rejected. Regarding Spain’s argument that the applicants had eventually entered Spain and could not maintain their victim status, the Court replied that this case concerned an alleged collective expulsion, and as such it could not take into consideration events subsequent to a separate border crossing. This objection was also rejected.

Lastly, on the exhaustion of domestic remedies, the government argued that the applicants could have tried to obtain entry visas in their countries of origin or applied for asylum while in Morocco. The Court answered that, in light of the applicants’ complaint that they were subjected to a collective expulsion, the procedures proposed by Spain could not be regarded as effective remedies, themselves being presented as alternatives to illegal entry rather than remedies. The objection was dismissed.

Alleged violation of Article 4 Protocol No. 4 (Art. 4 P4)

Applicability

The Court first admitted that states may arrange policies to allow access to their territory only to people fulfilling the relevant legal requirements, especially given the present context of immigration in Europe. However, it stressed that ensuing problems could not justify recourse to practices incompatible with the Convention.

It then asked whether the concept of “expulsion” within the meaning of Art. 4 P4 covered the “non-admission” of aliens at a state border given Spain’s argument that this situation was a case of non-admission and was not covered by the expulsion provisions Art. 4 P4. The Court referred to the International Law Commission’s (ILC) Draft Articles on the Expulsion of Aliens which show that the terms “expulsion”, “refoulement” and “non-admission” could be used interchangeably, so that “expulsion” would be used as a generic term. Therefore, the Court equated the “non-admission” of a refugee with their “refoulement”, meaning that the sole fact that a state refuses to admit an alien within its jurisdiction does not release it from its obligations towards that person.

The Court found this to be further confirmed by EU law, as well as its own previous case law. The Court concluded that the protection of the Convention could not be dependent on formal considerations (such as whether the people were admitted to the territory in accordance with a particular provision of national or European law) – states’ legitimate concern to foil attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention. Therefore Article 4 Protocol 4 was found to be applicable in this case.

Merits

Pursuant to its judgments in Hirsi Jamaa, Sharifi, and Khlaifia, the Court noted that the decisive criterion for Art. 4 P4 is the basnece of a reasonable and objective examination of a specific case and did not depend on the number of persons involved. The aim of this Article is to maintain the possibility for each alien concerned to assert a risk of treatment incompatible with the Convention were they to return. That is why it requires states to ensure that they each have “a genuine and effective possibility of submitting arguments against their expulsion”.

However, there is no violation if the lack of an individual decision can be attributed to the applicant’s own conduct, a culpability argument that had been raised by Spain. According to the Court, where there are enough arrangements for legal entry to secure the right to request protection under the Convention in a genuine and effective manner, states can require applications to be submitted at existing border points. As such, they may refuse entry to aliens, including potential asylum seekers, who have crossed the border at a different location without cogent reasons that would be attributable to Spain. The Court agreed that Spain gave the applicants several possible means of seeking admission to the national territory by applying for a visa or for international protection and that these legal avenues were available. Moreover, the Court did not find that the applicants had any “cogent reasons” not to use these border procedures, noting that the applicants also had access to Spanish embassies and consulates to have their file examined under a specific procedure for international protection (Section 38 of Law 12/2009) or to apply for a visa.

The Court stressed that there was no general duty under Art. 4 P4 for states to bring persons under the jurisdiction of another state within their own. Departing from the Chamber judgment, the Court found that the lackof an individual removal decision was attributable to the non-use of official entry procedures and there had been no violation of Art. 4 P4.

Alleged violation of Art. 13 ECHR in conjunction with Art. 4 P4

The applicants complained of the lack of an effective remedy with suspensive effect by which to challenge their immediate return to Morocco. The Court held that in so far as it had found that the lack of an individualised procedure for their removal was the consequence of the applicants’ own conduct, it could not hold the state responsible for not making available a legal remedy against that removal. The Court reversed the Chamber ruling and found that there was no violation of Art. 13 ECHR taken in conjunction with Art. 4 P4.

Outcome:

Application rejected: no violation of Art. 4 Protocol No. 4, no violation of Art. 13 ECHR taken in conjunction with Art. 4 P4.

Observations/comments:

As noted by the Court in its judgment, this was the first time it addressed the issue of the applicability of Art. 4 P4 to the immediate return of aliens after a group attempt to cross a border unauthorised. You can read our commentary on the case here.

A few preliminary issues are of particular interest:

• On the continued examination of the case (Art. 37 §1 (a) ECHR)

There was a question as to the maintenance of contact of the applicants with their representatives, given that they both lived in precarious circumstances and had no fixed address. The lawyers stated that they had remained in touch with the applicants, received updates, informed them of the case’s developments, and could join them by telephone. The government referred to the V.M. case at the hearing regarding the lack of an address and contact details for the applicants.The Court concluded that there was nothing that could call into question the lawyer’s account of the applicants’ interest and their contacts throughout the proceedings.

The Court added that in any event it could continue the examination of a case because respect for human rights required it i.e. where the case raises important issues that go beyond the particular situation of an applicant. This applied here because the case was referred to the Grand Chamber under Art. 43 ECHR, meaning it raised a serious issue – in this instance, the interpretation of the scope and requirements of Art. 4 P4 regarding mass attempts by migrants to enter a state in an unauthorised manner. As such, nothing could justify stopping the examination of the application under Art. 37 ECHR.

• On the assessment of evidence and establishment of facts by the Court

The government argued that the applicants had not demonstrated that they were part of the group that had scaled the fences due to the poor quality of the video footage submitted. The applicants argued that the evidence gathered was sufficient and that the state should have furnished more elements to the contrary.

Given the differences in the parties’ accounts of the facts, the Court assessed whether it was persuaded of the truthfulness of the applicants’ statements as to their participation in the storming of the fences. And because the difficulty for the applicants of adducing evidence of their involvement was linked to the violation alleged (i.e. absence of identification and personalised treatment) and at the core of their complaint, the Court sough to ascertain whether the applicants had furnished prima facie evidence.

In that regard, the Court noted that the applicants had given a coherent account of their individual circumstances and participation in the storming, and that they had provided video footage to that effect in which they had recognised themselves. Moreover, the Court observed that the reports provided by the government only demonstrated the impossibility of identifying the applicants but did not refute their arguments.  The Court therefore concluded that the applicants had presented sufficient evidence and presumed their account of the events to be truthful.

This summary was written by Alexandra Nouvel, PhD Candidate at the European University Institute.

Other sources:

• Council of Europe documents

Twenty Guidelines of the Committee of Ministers on Forced Return, 4 May 2005

2015 annual activity report by Nils Muiznieks, Commissioner for Human Rights, 14 March 2016

Report by Special Representative on migration and refugees Tomás Boček of fact-finding mission to Spain, 3 September 2018

Resolution 2299 (2019) of the Parliamentary Assembly on pushback policies and practice in Council of Europe member states, 28 June 2019

Travaux préparatoires of Protocol No. 4