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By Cristina Gortázar RotaecheNuria Ferré TradUniversity P. Comillas (Madrid)

The European Court of Human Rights ruled on 3 October 2017 in the case N.D and N.T v. Spain (available only in French with a translation in Spanish) that the forced returns at stake amount to prohibited collective expulsions in the sense of article 4 of Protocol nº 4 ECHR and that there has also been a violation of article 13 ECHR in conjunction with the previous protocol.

This judgment is of fundamental importance for Spanish border controls at the cities of Ceuta and Melilla. The Spanish State Attorney is for that matter considering to ask the case to be referred to the Grand Chamber of the ECtHR as explained by the Spanish Ministry of the Interior.  N.D. and N.T. are certainly not isolated cases. They are the result of the Spanish legislation and practice on summary returns (devoluciones en caliente) to Morocco from Ceuta and Melilla. Actually, there is currently another pending case before the Court in Doumbe Nnabuchi v. Spain.

The Spanish operational border concept

The Spanish Aliens Act of 11 January 2000 (Aliens Act) establishes the applicable legal framework to the control of Spanish borders in different ways (Article 26, 57, 58.3). Spanish borders are properly delimited by international treaties. The relevant in the case is the Convention with Morocco on the delimitation of the Spanish borders of the places of Ceuta and Melilla of 24 August 1989. In the case of Melilla, it is interesting to note that all the three border fences are located into Spanish territory as underlined by  the Committee of the Prevention of Torture ( CPT Report on Spain, April 9, 2015, para. 39; N.D. and N.T at par. 40).

Spanish authorities are guided by the “operational border concept” consolidated since 2005. Following this concept, the Aliens Act applies only once a third country national has crossed the last of the three fences successfully. While they remain in the land between the fences or climbing the third fence close to Spanish territory, they are considered as not being arrived in Spain, even if they are helped by Spanish agents to get off the third fence. Therefore, the migrants would not be under Spanish jurisdiction and Spanish legislation doesn’t apply.  In relation with the ECtHR’s first decision in the case N.D and N.T on 7 July 2015 , Spain amended its Aliens Act in order to legalise the summary returns of those who irregularly cross the border at its enclaves of Ceuta and Melilla. The Act on the Protection of Public Security of 30 March 2015 actually established an additional 10th provision to the Aliens Act regulating the aforementioned summary returns (devoluciones en caliente) under the concept of “rejection at the border”, a provision currently examined by the Constitutional Court. This provision states the following:

“1. Foreigners that are detected on the border line of the territorial demarcation of Ceuta or Melilla while trying to cross the border‘s contentive elements (fences) to irregularly cross the border, may be rejected in order to prevent their illegal entry into Spain.

2. In any case, the rejection shall be carried out in accordance with international human rights law and international regime of protection binding for Spain

3. Applications for international protection shall be formalised in the authorised places for that purpose and will be processed according to international protection obligations.”

So far, no implementation rules to the former provisions have been adopted.

This Aliens Act’s modification has been criticized by different international human rights bodies, including the Council of Europe Commissioner for Human Rights and the UNHCR. The critics to which the Spanish Government did not reacted focused on the infringement of the principle of non-refoulement.

Spanish judicial decisions on summary returns

In February 2014, 15 people were killed while trying to reach Ceuta through the sea by swimming. The Spanish Civil Guard repelled them by using anti-riot materials (rubber bullets and tear gas). The case was closed by the Court of First Instance and Instruction nº 6 of Ceuta. However on 12 January 2017, the Provincial High Court of Ceuta decided to reopen the case arguing that the investigation had been somehow insufficient. It is still ongoing.

In Melilla, a number of facts were investigated in relation to the summary return that took place on 18 June, 13 August (N.D and N.T cases) and 15 October 2014. The Court of First Instance and Instruction No. 2 of Melilla ruled on these events, when several Sub-Saharan people were automatically sent back to the Moroccan authorities after jumping over the fence without being identified and without carrying out any type of procedure. The case was dismissed by the Provincial Court of Malaga. This decision is interesting since, in spite of affirming that these returns are carried out without any guarantees, it definitely concludes that the operational border concept is not prohibited. It is also significant that it concludes by stating that rejection at the border has been legalised after the events, acquiring legal coverage.

The cases of N.D. and N.T.

On 13 August 2014, N.D. and N.T., a Malian and an Ivorian citizen,were detained by the Spanish Civil Guard when they managed to jump over the triple Melilla fence. They were immediately returned to Morocco together with about 80 migrants without being provided with the  possibility to identify themselves, to explain their personal situation, to ask for international protection or even to receive assistance from lawyers, interpreters or medical personnel.

In their request before the ECtHR, N.D and N.T alleged that they were refouled to Morocco where they risked ill-treatment contrary to Article 3 ECHR, without any effective remedy in violation of Article 13 ECHR. They also asserted that they were victims of collective expulsion contrary to Article 4 of Protocol 4. Finally they claimed an infringement of article 13 ECHR in combination with Article 4 Protocol 4 as they had no effective remedy to challenge their immediate return to Morocco.

On July 7 2015 the ECtHR rejected the claim on the violation of Article 3 ECHR as manifestly unfounded on the ground that the case does not show any apparent violation by the Spanish authorities of the said provision of the Convention. Nonetheless, the Court considered the admissibility of the other complaints.

The decision of the ECtHR on 3 October 2017

First of all, on the application of Article 1 ECHR, the Court stated that even if it is important to take into account international law and the treaties signed by Morocco and Spain delimiting the border, in this particular case, from the moment the two applicants got off the fence they were under “the ongoing and exclusive control, at least de facto, of the Spanish authorities “(N.D and N.T, ECtHR October 3, 2017, at par. 54). Therefore, jurisdiction arises on the basis of article 1 ECHR.

As regards the violation of Article 4 of Protocol 4,  Spain pretends that an expulsion is only collective if it affects a group of people characterized by common and specific circumstances of the group in question (N.D and N.T at par. 68). Spain also argued that the applicants could have applied for asylum in transit countries (Mauritania and Morocco) or to enter Spain legally through the border post of Beni-Enzar located at the border of Mellila. This is quite astonishing as Moroccan authorities do not permit sub-Saharians to reach this border post or to ask for asylum at this place (see the Commissioner on Human Rights,  N.D and N.T. at par. 86).

The ECtHR has refused those arguments by explaining that a collective expulsion is the forced return of a group of aliens except if there is a “reasonable and objective examination of each individual case” (Khlaifia nº 16483/12, ECtHR 2016, at par. 237 and following; N. D and N.T at par. 98). Obviously, the purpose is to avoid a forced return without an examination of the personal situation of the foreigners affected.

The Court has also reminded that, on the basis of international law, States “have the right to control the entry, exit and residence within their territories, but this does not justify the breach of other obligations at the time of expulsion” (N.D. and N.T. at par. 101, and Soering, par. 90-91). Moreover, the ECtHR has re-affirmed that the difficulties of States in managing migratory flows and asylum applications cannot lead them to carry out practices incompatible with their conventional obligations (Hirsi Jamaa at 179).

However, in N.D and N.T, there weren’t any domestic decisions at all, there was no any individual examination of each case either, nor any identification of the persons. Therefore, Spain has clearly violated Article 4 of Protocol 4. Regarding the effective remedy (see Hirsi Jamaa at par. 197 and Khlaifia at par. 268), there is no doubt for the same reason and there is thus also a violation of article 13 in conjunction with article 4 of Protocol 4. The Chamber ruled unanimously in respect to all matters discussed, except for the financial compensation which has been decided by 6 out of the 7 judges (see the partly dissenting opinion of Judge Dedov).

Assessment of the case

N.D and N.T is a clear victory for the protection of  human rights. This judgment has established that the summary returns (devoluciones en caliente) from the Spanish cities Ceuta and Melilla to Morocco are utterly illegal and violate the ECHR. Although the Spanish government intends to ask the case to be referred to the Grand Chamber, it seems difficult that the Court would reach a different conclusion. Each of the arguments of the Spanish government have indeed been rejected on the basis of very strong legal reasoning.

However, one may wonder why such collective expulsions have also not been considered as a violation of Article 3 ECHR, since Spain placed the concerned persons under its jurisdiction in a situation where their fundamental human rights could have clearly been under serious infringement. Not only in Morocco, but also in third countries to which the applicants could be expelled from Morocco (M.S.S., par. 286; Müslim, par. 72-76; Hirsi Jamaa, par. 146).