The ECHR judgment of 03 October 2017 in the case of N.D. and N.T. (N.D. and N.T.) v. Spain (applications Nos. 8675/15 and 8697/15).
In 2015, the applicants were assisted in the preparation of applications. Subsequently, applications were merged and communicated to Spain. In the case, the applicants successfully complained about their immediate expulsion to the territory of the neighboring country after they climbed over the border fences. The case involved violation of the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 4 of Protocol No. 4 to the Convention.
CIRCUMSTANCES OF THE CASE
In August 2014, a group of about 80 migrants from sub-Saharan countries, including the applicants, attempted to enter Spain through fences around Melilla, a Spanish enclave on the North African coast. After overcoming the obstacles, they were detained by members of the Civil Guard, who handcuffed them and returned them to the outside of the border without a procedure of identification or the possibility of clarifying their personal situation. Against those applicants who were able to return illegally to Spain, orders for expulsion were issued. Their administrative complaints and an application for asylum, filed by one of them, were rejected.
ISSUES OF LAW
(a) Jurisdiction of the Government of the respondent State (article 1 of the Convention). It is irrelevant whether there were obstacles that the applicants overcame in Spain or Morocco: from the time when the applicants had descended from these obstacles, they were under continuous and exclusive factual control of the Spanish authorities. Guesses about the powers, functions and actions of the Spanish security forces or nature and the purpose of their intervention could not lead to any other conclusion. Consequently, there was no doubt that the alleged facts were within the jurisdiction of the Spanish authorities within the meaning of Article 1 of the Convention.
(b) Admissibility. (i) Status of the victim (Article 34 of the Convention). (alpha) Evidence. The Court rejected the doubts of the Government of the respondent Government as to whether the applicants were indeed part of this group of migrants:
- The applicants presented a coherent version of the circumstances, their countries of origin and difficulties that led them to the temporary camp on Mount Gurugu (the migrant camp in neighboring Morocco) and their participation together with other migrants in an attempt to move through the barriers surrounding the Beni-Enzar border crossing August 13, 2014, with the aim of penetrating the territory of Spain; they presented videos that look authentic;
- the authorities of the respondent State did not deny the fact of expulsions in a simplified form. Soon after these events, they even made changes to the Institutional Law on the Rights and Freedoms of Foreign Citizens with a view to legalizing these "deportations on the spot." In any case, they could not invoke the fact that the applicants were not identified, since they themselves are responsible for this circumstance.
(beta) No damage. The fact that the applicants could subsequently enter Spain by other means did not deprive them of the status of victims of a violation of the Convention, since these allegations were not the subject of further investigation.
The preliminary objection of the Government of the respondent State was rejected (adopted unanimously).
(ii) Exhaustion of domestic remedies (Article 35 of the Convention). It is irrelevant that the applicants did not apply to the court with complaints about the deportation orders issued against them after re-entry to Spain. These orders were issued after the facts of the complaint complained of, which concern only collective expulsion after the events of August 13, 2014.
The preliminary objection was rejected by the authorities of the respondent State (unanimously adopted).
(c) Merits. Concerning compliance with Article 4 of Protocol No. 4 to the Convention. The issue of the applicability of this provision was postponed until the merits of the complaint were examined.
(i) "Expulsion". It was not necessary at this time to determine whether the applicants were deported after they had penetrated the territory of Spain or whether they had been returned before they were able to do so. Even interceptions on the high seas fall within the scope of Article 4 of Protocol No. 4 to the Convention (see Hirsi Jamaa and Others v. Italy, judgment of 23 February 2012, complaint No. 27765/09 (Bulletin of the European Court of Human Rights, 2012. N 8)). It is quite logical that the same applies to refusal to grant permission to enter the territory of the state to persons who illegally arrived by land. Against their will, the applicants, who were under the continuous and exclusive control of the Spanish authorities, were sent to Morocco.
(ii) "Collective character". The applicants were subjected to a measure of a general nature, consisting in containing and repelling attempts by migrants to illegally cross the border. The measures of expulsion were adopted without any preliminary administrative or judicial decision. The applicants were not subjected to any identification procedure. In the absence of consideration of individual situations of applicants, their expulsion should be considered as collective in nature.
There has been a violation of Article 4 of Protocol No. 4 (unanimously).
The Court also unanimously found that there had been a violation of Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 to the Convention.
In the application of Article 41 of the Convention. The Court awarded each applicant 5,000 euros (EUR) in respect of non-pecuniary damage.