A Hole of Unclear Dimensions: Reading ND and NT v. Spain
On 13 February 2020, the Grand Chamber of the European Court of Human Rights rejected in N.D. & N.T. the complaint of two migrants who had been pushed back by Spanish border police to Morocco – overturning the 2017 Chamber judgment that found a breach of the prohibition of collective expulsion. An NGO observer commented that the Grand Chamber judgment “will be perceived as a carte blanche for violent push-backs everywhere in Europe . . . Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”
Less than three weeks later, as Turkish President Erdogan stops preventing migrants from trying to reach the EU, Greek border guards are shooting at and endangering migrant boats and using tear gas and rubber bullets against migrants at the land border. Turkey even reports that one Syrian has been fatally shot by Greek border police – a claim that Greece denies. Meanwhile, Greek police is not effectively protecting support workers from right-wing violence, leading some to suspend their operations. Hungary sees its anti-Muslim, anti-immigration policy ruling the day. Honi soit qui mal y pense?
While the recent events in Greece are nothing less than shocking, EU Council President Croatia has been catching flack all winter for reports on its border policy, where migrants are beaten with sticks, including on their feet to prevent them from walking, burned with cigarette lighters, or submerged in the icy cold water of the river. So it is tempting to see a connection, but even if the events in Greece had nothing to do with the Grand Chamber judgment, has it become harder to criticise them as flagrant violations of international law? This very much depends on your reading.
What the Grand Chamber Decided
On the one hand, the judgment confirms the Court’s firm stance on jurisdiction, it upholds the principles developed in Hirsi Jamaa, and it twice confirms that the Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (para. 171 and 221). It also confirms the crucial role of the prohibition of collective expulsions for non-refoulement, affirming that:
“in this category of cases, [it] is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk. For that reason, Article 4 of Protocol No. 4 requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion […].” (para. 198)
On the other hand, it pokes a hole into the prohibition of collective expulsions, the dimensions of which are difficult to fathom: there is no breach if the deportees have caused the collective expulsion by their own “culpable conduct,” because they did not go through regular border procedures. The two inadmissibility decisions the Court cites to obfuscate the novelty of its approach are hardly pertinent in the sense the Court uses them here; one concerned a “collective” decision on a joint application, the other activists who had refused to give their names, making it impossible to draw up individualized decisions. The Court now applies these decisions to a scenario where the State never meant to take individual decisions – and also provides no way to challenge the assumption of a “culpable conduct”.
A broad reading of its new approach would be to consider that push-backs of persons crossing the border in an irregular manner never breach the prohibition of collective expulsions as long as there is a possibility to cross the border in a regular manner. And while the rights of the Convention are meant to be “practical and effective,” the Court in a throw-away comment considers it irrelevant whether a third country – in this case, Morocco – prevents access to the checkpoints at the Spanish border (para. 220). This broad reading would mean that, as long as an application for protection can in theory be made at a checkpoint, even if a third country effectively prevents access (as reported by UN Special Representative Tomáš Boček), States are now free to use pushbacks everywhere else.
A narrow reading, on the other hand, would insist on the legal standard of “genuine and effective access to legal means of entry” (para. 201, 209, 210, 222, and passim) and emphasize that this case was – albeit unconvincingly – decided on the facts. And it would point to the fact that the Court applied the “culpable conduct” exception only to a very specific scenario, namely “situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety” (para. 201, see also para. 231; somewhat broader para. 210). This reading would mean that the Court’s novel exception does not necessarily apply to small groups of migrants who non-violently seek to cross a border, even irregularly, and that even where it does apply, it depends on “genuine and effective access to protection”.
The judgment contains footholds for both readings. Future judges will be able to use them in one direction or another – indeed, a first case already demonstrates this potential (albeit in a dissenting opinion). Given that states will continue to push the envelope, it seems all the more important to point out what the Grand Chamber didn’t decide.
What the Grand Chamber Didn’t Decide
Firstly, this case is set at the land border. The Court has not reversed its findings on pushbacks at sea; on the contrary, it repeatedly affirms the Hirsi principles – also a Grand Chamber judgment – whose considerations, “concerning applicants who had attempted to enter a State’s territory by sea, have lost none of their relevance” (para. 187). This means that pushbacks at sea continue to be illegal. They violate the prohibition of collective expulsion (Article 4 Protocol 4) and the right to an effective remedy (Article 13), and they can violate the prohibition of refoulement (Article 3) depending on the risk.
Secondly, this was a case where the Court had thrown out the Article 3 claims right away, citing insufficient risks. The Grand Chamber judgment therefore only concerns the prohibition of collective expulsion. No findings have been made to reduce the scope of Article 3 ECHR, as has been pointed out here on this blog. This right continues to be absolute, it continues to also apply to chain refoulement situations, and it continues to require an individual assessment of any arguable claim, procedural guarantees, and a remedy with suspensive effect. Nevertheless, the slim majority in M.A. v. Lithuania is certainly grounds for concern over how “practical and effective” this right will be in the future, and this concern already bears out in Asady and others v. Slovakia, discussed below (M.A. concerned Chechen asylum seekers who had been pushed back several times, despite asking for asylum in their native language; three judges wrote a dissenting opinion.) This means that hot returns at the border continue to be illegal when a claim for protection is made. In practice, of course, the Grand Chamber judgment has made it so much harder to request protection at the border.
Thirdly, the Court can only decide on obligations under the ECHR; it has therefore not made findings on legal obligations outside of it. States remain bound by the 1951 Refugee Convention’s non-refoulement obligation and must make sure that they are not pushing back refugees—whose protected status does not depend on formal recognition. These obligations may also form part of domestic law, as in the case of Spain, over which the Court also has no jurisdiction. This means that States have to make sure they respect their non-refoulement obligations at the border. “Hot returns” make it impossible to comply with these obligations.
Fourthly, the judgment has no bearing on obligations under EU law. The Asylum Procedures Directive (just like the Dublin III Regulation) also applies “at the border” (Art. 2(1) and Art. 43 APD). When an application for international protection is made, it requires access to a procedure (Art. 6 APD) and an effective remedy (Art. 46 APD), during which the applicant should be allowed to remain in the Member State (Art. 9(1) and Art. 46(5) APD). At border crossing points, Article 8(1) APD even requires that the Member States inform possible applicants of these rights and, where necessary, provide for translation. Only when an application is not made (despite the opportunity to do so) or has remained unsuccessful, does the Return Directive apply. This means that there must be a real opportunity to claim protection, with effective access to a procedure – which is incompatible with “hot returns” or collective expulsions. Moreover, all of these EU instruments provide for non-refoulement, which, again, also applies if Member States implement domestic law at the external borders (Art. 2(2) Return Dir.).
What the Court Will Decide in the Near Future
As mentioned, the scope of the Grand Chamber’s reasoning in N.D. and N.T. was addressed in a recent Chamber judgment in the matter of Asady and others v. Slovakia. Here, the slim majority went the other way than in M.A. and others v. Lithuania. Four judges found that there was no collective expulsion, despite strong indications (supported by a Human Rights Watch report and OHCHR’s UPR compilation of statements by UN bodies, at para. 63–72) that the ten-minute interviews, some of which conducted concurrently with just one interpreter, were perfunctory and that the applicants signed documents they did not understand. This judgment strongly puts into question the language of the Grand Chamber on “genuine and effective access to protection” and demonstrates a shocking unwillingness to take into account the realities of adducing evidence for example, where the Chamber states that it “does not have any proof that the transcripts of the applicants’ interviews did not correspond to the applicants’ actual statements, or that those statements were wrongly translated […]”.
Interestingly, the three dissenters not only disagreed but also went on to distinguish this situation from N.D. and N.T., pointing out, firstly, that there were only thirty-two migrants (not 600) and “[t]here is nothing to suggest that any of them used force”, and secondly, that they caused “no […] disruption or endangerment of public safety”. Thirdly, they considered that, given the absence of an embassy procedure and the evidence provided by Human Rights Watch and OHCHR, Slovakia had “not provided sufficient access to means of legal entry”, such that the applicants’ motives for entering in an irregular manner were immaterial. This approach, the dissenting judges assert, “should not be taken as a defiance of the Grand Chamber” but simply as a reflection of “the limited circumstances in which that judgment is applicable.” They conclude:
“It is vital that the limited scope of the Grand Chamber’s judgment in N.D. and N.T. v. Spain be respected. An overly broad interpretation of the judgment would damage the ‘broad consensus within the international community’ concerning compliance with ‘the Convention guarantees, and in particular … the obligation of non-refoulement’ (see N.D. and N.T. v. Spain, […], § 232)”.
Going forward, there are two cases that deserve particular attention when it comes to developing the Grand Chamber’s novel jurisprudence.
The Grand Chamber has refrained from making a finding on whether an application at an embassy or consulate would have brought N.D. and N.T. under Spanish jurisdiction (para. 222). This question will play a central role in the case of M.N. and others v. Belgium, which was heard by the Grand Chamber in April 2019. It concerns an application for protection visa made by a Syrian family in the Belgian embassy in Beirut, which was rejected, and the failure to comply with the Aliens Appeals Board’s order to issue them a laissez-passer. The CJEU’s Grand Chamber had declined to consider the case (named X and X v. État belge) under EU law.
Analysis of recent human rights jurisprudence indicates that non-refoulement obligations may well apply in such scenarios (see here and here). Certainly, if the Grand Chamber tells N.D. and N.T. to use the embassy procedures (assuming these were in fact available, which is highly doubtful, contra the judgment, para. 223–226), this can only justify the novel exception if those procedures are governed by the Convention guarantees.
The Grand Chamber sloppily passed over the question of whether Spain’s asylum procedure was actually accessible, given the applicants’ claims that Moroccan border guards systematically prevent dark-skinned migrants from approaching the Spanish border crossing points, asserting that, in any case, “no responsibility of the respondent Government for this situation has been established before the Court” (para. 220–221). However, the international law on state responsibility provides for a number of ways in which one state can be responsible for the actions of another. Some arrangements in place may therefore form a basis for international responsibility, from the “EU-Turkey Deal” (which the CJEU has avoided reviewing) to the Memorandum of understanding between Italy and Libya.
The ECtHR will have to consider such cooperative measures in S.S. and others v. Italy. This case concerns the practice of the Italian authorities to call the Libyan Coast Guard (largely financed by Italy) to interfere with private SAR operations in the Mediterranean and bring the survivors back to Libya. Upon their detention in Libya, the applicants in the S.S. case were subsequently exposed to treatment clearly attaining the threshold of Article 3 ECHR. Had Italy acted directly, this would have been another Hirsi scenario – so can the fact that Italy relied on Libya exonerate it from its obligations under the Convention?
If the Grand Chamber accepts Italian jurisdiction (as suggested here, here and here by third party interveners), the Spanish border situation would certainly have to be reconsidered in regard to possible Spanish responsibility for Moroccan actions. On the other hand, this case may also serve to undermine the Hirsi principles in the sense of the novel restrictive principles developed in N.D. and N.T. The recent roll-back (see here and here) of the Court on border situations does not bode all too well for these applicants. It may be time to give Strasbourg a break and to rely on the UN treaty bodies instead – examined in a forthcoming article by Çalı, Costello, and Cunningham in the German Law Journal – which, as non-judicial bodies, are less “strong” than the ECtHR but which may prove less responsive to political pressure to minimise protection at the border.