Overturning a previous chamber decision, the Grand Chamber of the European Court of Human Rights (ECtHR) has held that Spain’s summary expulsion of two would-be migrants from Africa did not violate the European Convention on Human Rights because they were part of a large group that scaled the Melilla border fence between Morocco and Spanish territory. See ECtHR, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/17, Judgment of 13 February 2020, paras. 242-243. The judgment is the first time the Court has considered a migrant’s unauthorized entry to be relevant in this way, holding that the applicants were not entitled to protection from mass expulsion because of how they entered Spain. The Court relied on Spain’s assertion that the applicants could have sought asylum at a consulate or border crossing, despite evidence that Moroccan authorities prevented sub-Saharan migrants from reaching those places and that Spanish authorities did not actually have the relevant procedures in place at the time. Various third-party interventions in the case called on the Court to apply the Convention’s prohibition of collective expulsions, and human rights groups have criticized the Court’s ruling as “ignoring the reality at European borders” and of authorizing “violent push-backs everywhere in Europe.” [The Guardian; ECCHR; Amnesty] This is the Court’s first ruling on the issue of forcible return of migrants from a land border, adding to the European Court’s doctrine on collective expulsions. See ECtHR, Factsheet – Collective expulsions of aliens (Feb. 2020).
In August 2014, the applicants (one from Mali and the other from Côte d’Ivoire) attempted to enter Spain by climbing the fences surrounding the Spanish city of Melilla on the North African coast. See ECtHR, N.D. and N.T. v. Spain [GC], Judgment of 13 February 2020, paras. 24-25. Upon crossing the border, they were immediately arrested and returned to Morocco without going through an identification procedure or an opportunity to receive assistance from lawyers, interpreters, or medical personnel. See id. at paras. 26-27. In February 2015, they filed a complaint before the European Court alleging that they had been subjected to a collective expulsion without an individual assessment of their situation, and that their removal occurred without prior judicial or administrative decisions in violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) and Article 13 of the European Convention (right to an effective remedy). See id. at para. 3. In October 2017, a chamber of the European Court found that Spain’s decision to immediately return the applicants to Morocco violated Article 4 of Protocol No. 4 and Article 13 of the Convention. See id. at para. 8. The Spanish government requested that the case be referred to the Grand Chamber, and the Grand Chamber accepted the request on January 29, 2018. See id. at para. 9. The Grand Chamber held a hearing on September 26, 2018. See id. at para. 13.
Various third parties intervened in this case. The Belgian, French, and Italian governments submitted written third-party observations. See id. para. 12. In general, their arguments echoed those of the Spanish government. The Court also received third-party observations form the Commissioner for Human Rights of the Council of Europe, the UN Office of the High Commissioner for Refugees (UNHCR), the OHCHR, the Spanish Commission for Assistance to Refugees, and a joint submission from the Centre for Advice on Individual Rights in Europe, Amnesty International, the European Council on Refugees and Exiles and the International Commission of Jurists, joined by the Dutch Council for Refugees. See id. at paras. 6, 12. The Commissioner for Human Rights of the Council of Europe Dunja Mijatović and the UNHCR participated in the hearing. See id. at para. 13.
The Grand Chamber first analyzed whether the Court had jurisdictional competence under Article 1, which refers primarily to territorial jurisdiction, of the European Convention given that the ECtHR chamber had not previously assessed whether the events at issue took place on Spanish or Moroccan territory. See id. at paras. 90, 102. The Grand Chamber reiterated that territorial jurisdiction is presumed unless there are “exceptional circumstances” that prevent a State from exercising its authority in parts of its territory. See id. at para. 103. In this case, the Court found that the events at issue took place on Spanish territory and that Spain exercised control over that territory, thus falling within Spain’s jurisdiction as required by Article 1. See id. at paras. 106-108, 111. The Court clarified that “the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction, which begins at the line forming the border.” See id. at para. 109.
The European Court also dismissed the Spanish government’s arguments regarding the applicants’ failure to exhaust domestic remedies. See id. at paras. 120-122. The Court found that while various procedures were available to the applicants to seek legal entry into Spain, those procedures constitute “alternatives to illegal entry” and “cannot be regarded as effective remedies” for the collective expulsion that the applicants allege they were subjected to. See id. at 120-121.
Article 4 of Protocol No. 4
The Court assessed the applicants’ allegation that they had been subjected to a “collective expulsion” in violation of Article 4 of Protocol No. 4 of the European Convention. See id. at paras. 123, 164. The Spanish government – along with the Belgian, French, and Italian governments who intervened as third parties – argued that there had not been an “expulsion” because the applicants were not admitted into Spanish territory in the first place. See id. at para. 165. Thus, the Court first focused on determining whether there had been an “expulsion” within the meaning of Article 4 of Protocol No. 4, specifically whether “expulsion” covers the “non‑admission of aliens at a State border or… at an external border of that area.” See id. at para. 173.
Drawing on the International Law Commission’s Draft Articles on the Expulsion of Aliens (which define expulsion as a “formal act” or “conduct attributable to a State by which an alien is compelled to leave the territory”), European Union law, and the Geneva Convention prohibiting refoulement, the Court ultimately found that there was no doubt that the applicants were “forcibly returned to Morocco,” and that their removal from Spanish territory constituted an “expulsion” under Article 4 of Protocol No. 4. See id. at paras. 174-175, 178-179, 182-188, 189-191.
The Court then assessed whether the expulsion was “collective.” See id. at para. 192. An expulsion is “collective” if it “compels aliens, as a group, to leave a country.” See id. para. 193. The Court clarified that the most important criterion used to determine the “collective” nature of the expulsion is the “absence of ‘a reasonable and objective examination of the particular case of each individual alien of the group.’” See id. at para. 195 (citing ECtHR, Khlaifia and Others). While Article 4 of Protocol No. 4 does not guarantee an individual interview, the Court stated that it does guarantee each individual “the opportunity to put arguments against his or her expulsion to the competent authorities.” See id. at para. 199. However, the Court also stated that the “applicant’s own conduct is a relevant factor in assessing the protection to be afforded under Article 4 of Protocol No. 4.” See id. at para. 200.
In this case, the Court focused on the applicants’ conduct, finding that the applicants crossed into Spanish territory in an unauthorized manner and as part of a large group. See id. at para. 206. Even though the Court noted that the applicants had in fact been returned to Morocco without first being identified or undergoing a written procedure, it nevertheless found that the lack of individual removal decisions was the result of the applicants’ “culpable conduct” (referring to their failure to use legal procedures to enter the Spanish territory, which the Court considered were available and accessible to the applicants) and of their decision to take “advantage of the group’s large numbers and using force.” See id. at paras. 207, 208, 227, 231-232. For these reasons, the Court did not find a violation of Article 4 of Protocol No. 4. See id. at para. 231. However, the Court subsequently stressed that while States have an “obligation and necessity” to protect their borders, they must do so in a manner that upholds the rights set out in the European Convention. See id. at para. 232. And, in particular, States must guarantee non-refoulement. See id.
With respect to Article 13 of the Convention, which protects the right to an effective remedy, the Court held that it could not find Spain responsible for failing to provide a legal remedy in Melilla that would have allowed the applicants to challenge their removal given that the applicants’ chose to enter Spain in an unlawful manner, as part of a large group, and at an unauthorized location. See id. at paras. 233, 240, 242. Having found that the applicants’ collective removal was the result of their own unlawful conduct, the Court did not find Spain in violation of Article 13. See id. at para. 242.
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