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By Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In its judgement N.D. and N.T. of 13 February 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) rejected the finding that Spain had violated the ban on collective expulsions enshrined in Article 4 Protocol No. 4 of the European Convention on Human Rights (ECHR). To conclude from this that the practice of so-called hot returns, i.e. the direct deportations without individual examination directly at the border, was approved by the ECHR, is understandable in view of the press statement of the ECHR but wrong. The practice of hot returns was and remains illegal.

In the case before it, the ECtHR merely interpreted the wording of article 4 of Protocol 4 to the EHCR (“Collective expulsions of foreign persons are not permissible”) – in a legally questionable manner – by adding a (narrowly limited) exception in a case that resulted in the aftermath of “an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse.” Consequently, the ECtHR did not find any violation in the specific individual cases. However, the Spanish border control measures (or even “Fortress Europe“) have thus neither been approved nor has the principle of non-refoulement or the question of access to an asylum procedure been made dependent on the person first trying to enter Europe legally. Rather, hot returns are still prohibited, not according to Article 4 of Protocol No. 4 to the ECHR, but according to Art. 3 ECHR prohibiting inhuman and degrading treatment or punishment. One could also interpret the judgment as meaning that the ECHR did try to avoid a political statement on the issue before it.

No exception regarding Art. 3 ECHR

To start with, the decisive sentence of the judgment is in para. 232 where the ECtHR states that its previous remarks (on the “border fence storm exception” of Article 4 Protocol No. 4) must not be understood as meaning that States may disregard their obligations under the ECHR in the border controls to which they are entitled. Rather, they must be carried out “in a manner which complies with the Convention guarantees, and in particular with the obligation of non-refoulement”. 

The consequences regarding the practice of border controls are not explained in detail in N.D. and N.D. The Court clarifies that the respective standards are to be derived for asylum seekers from the November 2019 judgment in the case Ilias and Ahmed (para. 23). In this judgment, these standards are described in more detail (para. 133 et seq.). Persons must have access to an individual procedure at the border – in every situation – in which it is examined whether they are in need of protection and whether a transfer (to the neighbouring state) in an individual case violates the Convention or its Article 3 ECHR. The Hungarian practice, which generally classified Serbia as safe and did not include any individual guarantee of access to an asylum procedure (in Serbia), was judged by the ECtHR to be in violation of Article 3 ECHR (para. 161 et seq.). 

It follows from these statements of the ECtHR and from the emphasis on the prohibition of refoulement by the ECtHR in para. 232 of ND & NT that no exceptions to Article 3 ECHR are permissible even in the case of mass arrivals and illegal border crossings. Rather, every person must be given the opportunity to submit a request for protection and have access to an asylum procedure. Since this is not guaranteed in the case of hot returns, this practice remains illegal under Article 3 ECHR (in conjunction with Article 13 ECHR). Effective access to asylum procedures must be guaranteed – also at the Schengen external borders and even if effective and accessible legal channels of access are available. The fact that the ECtHR did not (again) explicitly state this in N.D. and N.T. has exclusively procedural reasons.

The specificity of the N.D. and N.T. case

The Court considered that the complainants simply did not make any or too little submissions with regard to an infringement of Article 3 ECHR. In its inadmissibility decision of 7 July 2015, the ECHRs states succinctly that this originally asserted violation was not substantiated by the complainants and that no obvious violation of the prohibition of refoulement is apparent from the file itself (para. 15). Thus, a violation of Art. 3 ECHR was ruled out early on in the proceedings as a subject of complaint and examination. Accordingly, the ECtHR did not express its views on this neither in the 2017 Chamber judgment nor in the 2020 Grand Chamber decision

Since, moreover, the ECtHR must base its decision on the facts established at the time of the decision, it could not find any violation of Article 3 ECHR in the year 2020 – when, in the view of the Court, it was established that both complainants were not in need of protection and were not subjected to any (sufficiently asserted) inhuman or degrading treatment after their direct return to Morocco. However, this does not mean that Morocco has generally been classified as a safe third country; the Court has merely established the absence of a violation of Article 3 ECHR in the two individual cases of ND & NT.

Moreover, it was clear to the ECHR at the time of the decision that neither of the two complainants were refugees or otherwise entitled to protection, so that also in this respect the guarantees for asylum-seekers described in detail in Ilias and Ahmed were not (or at least no longer) applicable. In this case, procedural law is quasi turned against the complainants. The originally unlawful measure turned out to be lawful in retrospect, since the persons either did not claim to be in need of protection at all (N.T.) or this was established after an asylum procedure (N.D.). In such a case, the guarantees of the ECHR and the 1951 Refugee Convention cannot apply to these persons. 

In procedural terms, the ECtHR was thus barred from taking access to the asylum procedure or the lack of an individual examination at the time of deportation into account in its judgment. With its remarks on the rights of refugees and asylum seekers, the Court makes it clear that it would have reached a different judgment if the complainants had been in need of protection (para. 177 et seq.), irrespective of whether this had been asserted or not. Thus, only Article 4 of Protocol No. 4 of the ECHR remained as the object of the dispute, and only for this did the ECHR not find a violation.

No (absolute) priority of legal channels of entry 

Moreover, the reference to legal channels of entry which excludes protection made by the Court in the context of the examination of Article 4 of Protocol No. 4 of the ECHR, does not have the same effect for Article 3 ECHR. The ECtHR does state that, in its view, all persons, especially refugees and asylum seekers, must be given genuine and effective access to procedures for legal entry into Spain (para. 229). Furthermore, in para. 210 of the judgment, it refers persons in search of protection to existing legal entry possibilities and states that access may be denied at other border crossing points. However, the Court does not make the statement that refugees and other persons in need of protection or asylum seekers must use these entry channels in order to be protected by Article 3 ECHR. On the contrary, it clarifies that these statements (in para. 209 et seq.) must not be understood in such a way that they relativize the obligations arising from the prohibition of refoulement or would be associated with an obligation to seek legal entry channels beforehand. 

Rather, Art. 3 ECHR applies absolutely, i.e. even if persons enter illegally. Any other interpretation would also be a violation of Article 33 of the 1951 Refugee Convention, which contains the principle of non-refoulement under refugee law, always applicable when a person is under the sovereignty of a state and – like Article 3 ECHR – contains an obligation to examine a request. Moreover, direct refoulement would probably also be a violation of Article 31 para. 1 ECHR, which prohibits any “penalties, on account of their illegal entry or presence, on refugees” unless they were given the possibility to present their claim. A direct return is precisely such a prohibited penalty. 

Conclusions for practice

This in turn means that, since the scope of the ECHR has been opened up (see para. 102 et seq. of the judgment), the Spanish authorities must nevertheless carry out a procedure at the border to determine whether a person is a potential refugee or otherwise in need of protection. Hot returns are only permitted in the case of persons for whom it is clear that they are not in need of protection. However, this can only be determined in an individual case-by-case assessment, which must be carried out on site. This means that the Spanish practice remains illegal, as this examination and the necessary procedural guarantees are not observed in practice. This, in turn, should ideally have been made much clearer by the ECtHR (not just “hidden” in para. 232) in order to establish legal certainty.

Because of the finding of non-violation and the corresponding press release by the Court, states – and not only these – may assume that such a practice is permitted, even though it is clearly unlawful. This must now be clarified as quickly and decisively as possible. The Spanish Constitutional Court could be the right place for rapid clarification – as well as another ECHR case with a potential Art. 3 ECHR violation. 

The ECtHR has tried to rule in Solomon-like fashion, but it has failed in the face of both public perception and legal scrutiny (because the judgment is not consistent). However, the strategic litigation behind the case, which relied on Article 4 of Protocol No. 4 of the ECHR, has also failed. This article, a “rising star” in human rights litigation, had its (procedural) wings clipped by the decision. Nevertheless, Article 3 ECHR still remains absolute in nature and, consequently, direct (“hot”) returns are still prohibited by its absolute nature and the procedural guarantees attached to it. Whether this important part of the reasoning of the ECHR has been correctly understood in the political and public arena is more than questionable in view of the reception of the judgment to date.