Case of European Court of Human Rights, February 13, 2020 (case N.D. AND N.T. v. SPAIN)

Defense:SPAIN
Resolution Date:February 13, 2020
SUMMARY

Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 37-1 - Respect for human rights;Article 37-1-b - Matter resolved;Article 37-1-c - Continued examination not justified);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of ... (see full summary)

 
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GRAND CHAMBER

CASE OF N.D. AND N.T. v. SPAIN

(Applications nos. 8675/15 and 8697/15)

JUDGMENT

Art 4 P 4 • Prohibition of collective expulsion of aliens • Immediate and forcible return of aliens from a land border, following an attempt by a large number of migrants to cross it in an unauthorised manner and en masse • No distinction between non-admission and expulsion of aliens for the purposes of applicability of Art 4 P 4 • Availability of genuine and effective access to means of legal entry allowing to claim protection under Art 3 • Absence of cogent reasons for failure to use official entry procedures, which were based on objective facts for which the respondent State was responsible • Lack of individual removal decisions being a consequence of the applicants’ own conduct

STRASBOURG

13 February 2020

This judgment is final but it may be subject to editorial revision.

Table of contents

PROCEDURE

THE FACTS

  1. THE BACKGROUND TO THE CASE

  2. THE CIRCUMSTANCES OF THE CASE

    1. Origins of the case

    2. The events of 13 August 2014

    3. The applicants’ subsequent entry into Spain

    RELEVANT LEGAL FRAMEWORK AND PRACTICE

  3. DOMESTIC LAW AND PRACTICE

    1. Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”)

    2. Law 12/2009 of 30 October 2009 on asylum and subsidiary protection

    3. Royal Decree 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum)

    4. Royal Decree 557/2011 of 20 April 2011 (implementing regulations for the LOEX)

    5. The Guardia Civil border control operations protocol of 26 February 2014 (as applicable at the relevant time), which introduced the term “operational border”

    6. Circular letter to all Spanish ambassadors

    7. The Spanish Ombudsperson’s Office

  4. EUROPEAN UNION LAW

    1. Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009)

    2. Charter of Fundamental Rights of the European Union

    3. Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009)

    4. The Agreement on the accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990

    5. Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

    6. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification)

    7. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals (“the Return Directive”)

      1. The text of the Directive

      2. Relevant case-law of the CJEU in relation to this Directive

    8. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [subsequent version: Directive 2013/32/EU of 26 June 2013]

  5. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast)

    1. European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI))

  6. COUNCIL OF EUROPE DOCUMENTS

    1. Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005 at the 925th meeting of the Ministers’ Deputies

    2. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

    3. The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”), dated 14 March 2016

    4. Report dated 3 September 2018 of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18‑24 March 2018 (SG/Inf(2018)25)

    5. Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe, adopted on 28 June 2019: Pushback policies and practice in Council of Europe member States

  7. OTHER INTERNATIONAL MATERIALS

    1. Charter of the United Nations (UN Charter), signed on 26 June 1945 in San Francisco

    2. Vienna Convention on the Law of Treaties of 23 May 1969

    3. Geneva Convention of 28 July 1951 relating to the Status of Refugees

    4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT)

    5. Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII))

    6. International Law Commission’s Draft Articles on the Expulsion of Aliens

    7. Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017

    8. Views adopted by the Committee on the Rights of the Child on 12 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016

    THE LAW

  8. PRELIMINARY ISSUES

    1. Continued examination of the case – Article 37 § 1 (a)

    2. Assessment of the evidence and establishment of the facts by the Court

  9. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION

    1. The Chamber judgment

    2. The parties’ submissions

    3. The third parties’ observations

    4. The Court’s assessment

    1. General principles

    2. Application to the present case

  10. THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS

    1. The applicants’ alleged loss of victim status

    2. Exhaustion of domestic remedies

    1. The Government

    2. The applicants

    3. The Court’s assessment

  11. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION

    1. The Chamber judgment

    2. The parties’ submissions before the Grand Chamber

      1. The Government

      2. The applicants

    3. The third parties’ observations

      1. The Commissioner for Human Rights of the Council of Europe

      2. The third-party Governments

        (a) The Belgian Government

        (b) The French Government

        (c) The Italian Government

      3. The other third-party interveners

        (a) UNHCR

        (b) OHCHR

        (c) The CEAR

        (d) The AIRE Centre, Amnesty International, the European Council on Refugees and Exiles (ECRE), the Dutch Council for Refugees and the International Commission of Jurists, acting jointly

    4. The Court’s assessment

      1. Applicability

        (a) General principles

        (b) Application to the present case

      2. Merits

        (a) General principles

        (b) Application to the present case

        (i) The fact that there were only two applicants

        (ii) The applicants’ conduct

        (α) The parties’ submissions

        (ß) The Court’s assessment

  12. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4

    1. Admissibility

    2. Merits

    1. The Chamber judgment

    2. The Court’s assessment

      CONCURRING OPINION OF JUDGE PEJCHAL

      PARTLY DISSENTING OPINION OF JUDGE KOSKELO

      In the case of N.D. and N.T. v. Spain,

      The European Court of Human Rights, sitting as a Grand Chamber composed of:

      Linos-Alexandre Sicilianos, President,Angelika Nußberger,Robert Spano,Vincent A. De Gaetano,Ganna Yudkivska,André Potocki,Aleš Pejchal,Faris Vehabović,Mārtiņš Mits,Armen Harutyunyan,Gabriele Kucsko-Stadlmayer,Pauliine Koskelo,Marko Bošnjak,Tim Eicke,Lәtif Hüseynov,Lado Chanturia,María Elósegui, judges,and Johan Callewaert, Deputy Grand Chamber Registrar,

      Having deliberated in private on 26 September 2018, 3 July and 5 December 2019,

      Delivers the following judgment, which was adopted on the last mentioned date:

      PROCEDURE

    3. The case originated in two applications (nos. 8675/15 and 8697/15) against the Kingdom of Spain. The applications were lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Malian national, N.D., the applicant in application no. 8675/15 (“the first applicant”), and a national of Côte d’Ivoire, N.T., the applicant in application no. 8697/15 (“the second applicant”), on 12 February 2015.

    4. The applicants were represented by Mr C. Gericke and Mr G. Boye, lawyers practising in Hamburg and Madrid respectively. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human RigM.A. v. lihts Legal Department, Ministry of Justice.

    5. In their applications the applicants alleged, in particular, a violation of Article 3 and Article 13 of the Convention, of those two Articles taken together, of Article 4 of Protocol No. 4 to the Convention, and, lastly, of Article 13 taken together with Article 4 of Protocol No. 4. They complained of their immediate return to Morocco, which amounted in their view to a collective expulsion, of the lack of an effective remedy in that regard and of the risk of ill-treatment which they allegedly faced in Morocco. They submitted that they had had no opportunity to be identified, to explain their individual circumstances or to challenge their return by means of a remedy with suspensive effect.

    6. The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). By a decision of 7 July 2015 the Government were given notice of the complaints under Article 4 of Protocol No. 4 and Article 13 of the Convention, and under both those Articles taken together. The Court decided to join the applications and found the remaining complaints inadmissible (Rule 54...

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