ECtHR - A.C. and Others v. Spain, Application No. 6528/11

Facts:

The 30 applicants, all of Sahrawi origin, arrived in and lodged applications for international protection. They had reached Spain’s Canary Islands on makeshift boats between January 2011 and August 2012, having fled their camp in the Western Sahara after it was forcibly dismantled by Moroccan police.

The 30 applications were rejected, as were the applicants’ subsequent requests to have them reconsidered. The applicants then applied for judicial review of the decisions to reject their applications, at the same time seeking a stay of execution of the orders for their deportation. After ordering the administrative authorities to provisionally suspend the applicants’ removal, the Audiencia Nacional rejected the 30 applications for a stay of execution. Following requests by the applicants for interim measures, the European Court indicated to the Spanish Government under Rule 39 of the Rules of Court that the applicants should not be removed for the duration of the proceedings before it. The Audiencia Nacional rejected the applications for judicial review lodged by some of the applicants, who then appealed on points of law to the Supreme Court. By the date of its judgment, the Court had had no information as to the outcome of those appeals.

Decision & reasoning:

Article 13 of the Convention: The Court was not required to determine whether there might be a violation of Articles 2 and 3 of the Convention in the event of the applicants’ deportation. It was first and foremost for the Spanish authorities themselves, which were responsible for asylum matters, to examine the applicants’ applications and the documents produced by them and to assess the risks they would face in Morocco. The Court’s fundamental concern was whether effective safeguards were in place to protect the applicants from arbitrary removal, whether direct or indirect, to their country of origin, given that their appeals on the merits were still pending before the domestic courts.

The application of Rule 39 of the Rules of Court had been the only means of suspending the procedure for the applicants’ removal. After their applications for a stay of execution had been rejected by the Audiencia Nacional, there had been no further obstacle to their removal. Admittedly, the effectiveness of a remedy within the meaning of Article 13 of the Convention did not depend on the certainty of a favourable outcome for the applicant. However, without the Court’s intervention, the applicants would have been returned to Morocco without the merits of their case having been examined as thoroughly and rapidly as possible, since their applications for judicial review did not as such have automatic suspensive effect capable of staying the execution of the orders for their deportation.

 Furthermore, the applicants had arrived in Spain between January 2011 and August 2012, and since then they had been in a provisional situation of legal uncertainty and material insecurity pending final decisions on their applications. Where a remedy did not have suspensive effect or an application for a stay of execution was rejected, it was essential that in expulsion cases involving Articles 2 and 3 of the Convention in which the Court had applied Rule 39, the courts should act with special diligence and determine the merits rapidly. Otherwise, the remedies would cease to be effective. In conclusion, the applicants had not had a remedy satisfying the requirements of Article 13 in respect of their complaints under Articles 2 and 3 of the Convention.

The Court found a violation of Article 13 of the Convention

Article 46 of the Convention: Regard being had to the special circumstances of the case, to the fact that the violation of Article 13 of the Convention resulted from the non-suspensive effect of judicial proceedings concerning the applicants’ applications for international protection, and to the fact that those applications were still pending even though the first group of applicants had applied for asylum on arriving in Spain in January 2011, the respondent State was to ensure that, from a legal and material perspective, the applicants remained within Spanish territory while their cases were being examined, pending a final decision by the domestic authorities on their applications for international protection.

Rule 39 of the Rules of Court: Spain was to refrain from deporting the applicants until such time as the present judgment became final or the Court gave a further decision in the case.

Outcome:

Violation of Article 13 in conjunction with Articles 2 and 3 of the Convention.

Maintenance of Rule 39 interim measures.

The Court has obliged Spain to undertake individual measures under Article 46.

Subsequent proceedings:

An action plan submitted in November 2015 by Spain which details all execution measures taken or planned is currently under assessment by the CoE Committee of Ministers.

The Spanish authorities have already informed that none of the applicants were expelled; and that according to the newly established case-law of the Supreme Court (as of March 2013) the accelerated procedure may only be used by strictly applying the legal criteria, as the ordinary procedure should be the rule.

Observations/comments:

Spanish text of the judgment can be accessed here:

http://www.mjusticia.gob.es/cs/Satellite/1292427043445?blobheader=application/pdf&blobheadername1=Content-Disposition&blobheadername2=Grupo&blobheadervalue1=attachment; filename=Sentencia_AC.pdf&blobheadervalue2=Docs_TEDH

Spanish case summary can be accessed here:

http://www.migrarconderechos.es/jurisprudenceMastertable/jurisprudencia/STEDH_22_04_2014;jsessionid=EFFF7A94A25D04CEA97A4B646129212D

Other sources:

Rights Trampled : Protests, Violence and Repression in Western Sahara, the report by

 Amnesty International, 20 December 2010 

A statement by Human Rights Watch, published on 26 November 2010