ECtHR’s Grand Chamber quashes 2017 Chamber judgment and supports Spanish system of immediate returns in Melilla
The Grand Chamber of the European Court of Human Rights (ECtHR) has today delivered its judgment in the case of N.D. and N.T. v. Spain (application nos. 8675/15 and 8697/15), a case concerning the immediate return of two individuals who tried to enter Spain in an unauthorised manner by climbing the three parallel fences surrounding the Spanish enclave of Melilla on the North African coast.
The applicants claim that, as soon as they climbed down the fence, they were apprehended by Spanish Guardia Civil officials who handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities. They also claim that no attempt was made to identify them, that they had no opportunity to explain their personal circumstances to the officials, or to be assisted by lawyers or interpreters, and that they requested but were refused medical assistance.
By its Chamber judgment of 3 October 2017, the ECtHR held, unanimously, that there had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions of aliens) and of Article 13 (right to an effective remedy) of the European Convention of Human Rights (ECHR). The Chamber considered that the Spanish authorities had indeed expelled the applicants in the absence of any prior administrative or judicial decision and without conducting an identification procedure. Insofar as the removal measures were carried out without individually assessing the personal circumstances of those concerned, the ECtHR ruled that such measures were collective in nature. It therefore dismissed the Spanish Government’s plea that Article 4 of Protocol No. 4 was not applicable because the expulsion was not collective, that is, it did not affect a group of persons linked by the same set of circumstances specific to that group.
On 29 January 2018 the ECtHR accepted the request from the Spanish Government that the case be referred to the Grand Chamber. On 26 September 2018 a hearing was held. Many third-party written observations were submitted in the case, inter alia from the Commissioner for Human Rights of the Council of Europe, the Office of the United Nations High Commissioner for Refugees and, acting collectively, the Advice on Individual Rights in Europe Centre, Amnesty International, the European Council on Refugees and Exiles and the International Commission of Jurists.
In today’s Grand Chamber judgment, the ECtHR departed from the previous Chamber’s judgment and held, unanimously, that Spain did not violate Article 4 of Protocol No. 4 or Article 13 ECHR. The Grand Chamber considered that the applicants had placed themselves in an unlawful situation when they deliberately attempted to enter Spain as part of a large group and at an unauthorised location, taking advantage of the group being large in number and using force. The ECtHR ruled that the lack of individual removal decisions could be attributed to the fact that the applicants – assuming that they had wished to assert rights under the Convention – had not made use of the official entry procedures existing for that purpose, and that it had thus been a consequence of their own conduct. Consequently, the ECtHR did not hold Spain responsible for the lack of a legal remedy in Melilla enabling them to challenge that removal.
The Grand Chamber’s judgment is available here.