ECtHR - N.D. and N.T. v. Spain, Application Nos. 8675/15 and 8697/15, 3 October 2017

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Country of Applicant: 
Ivory Coast
Mali
Date of Decision: 
03-10-2017
Citation: 
Application Nos. 8675/15 and 8697/15
Court Name: 
European Court of Human Rights, 3rd section
Relevant Legislative Provisions: 
European Union Law > EN - Treaty on European Union > Article 2
European Union Law > EN - Treaty on European Union > Article 6
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > Article 78
Council of Europe Instruments > ECHR (Fourth Protocol) > Art 4
Headnote: 

The continued and exclusive control of contracting State's authorities over individuals creates, at least, a de facto exercise of jurisdiction for the purposes of Article 1 ECHR. 

In light of Spain's jurisdiction over N.D. and N.T, who had attempted to cross the fences separating Morocco from Melilla, Spain was bound by the prohibition of collective expulsions under the Convention. A standardised response of removal to the applicants attempted entry to the Spanish territory without any identification procedure or administrative or judicial measure being first taken meant that the Spanish authorities had violated Article 4 Protocol 4 to the Convention. 
 
The collective expulsion of the applicants was clearly linked to their inability to access a national procedure which would satisfy Article 13 requirements.The applicants had, therefore, also been denied an effective and rigorous remedy which would allow them to contest the collective expulsion. 
Facts: 

The case originates in an attempted entry into the Spanish enclave of Melilla by a group of individuals, amongst which were N.D. and N.T, on 13 August 2014. Both of the applicants attempted to climb over the three fences separating Melilla from Morocco. During their attempt they were subject to attacks by the Moroccan authorities who threw stones at them and they witnessed violence against other individuals by both Spanish and Moroccan authorities. There were also deprived of any medical or legal assistance during their crossing attempt. Once having successfully crossed the fences they were immediately stopped by the Spanish authorities who summarily sent them back to Morocco. They were neither subject to an identification procedure nor had the possibility to give any details of their individual circumstances. There were no lawyers, interpreters and doctors who could assist them in this regard.

They were sent to the police commissariat in Nador, Morocco, where they were refused medical assistance and were later sent to Fez.

Later on in the year both of the individuals managed to enter into Spanish territory, again via the border post at Melilla. They were subject to a form of procedure which led to removal orders being issued. N.D. was subsequently returned to Mali and the location of N.T. is currently unknown.  The applicants subsequently complained before the ECtHR that their removal had led to a violation of Article 3, Article 3 read in conjunction with Article 13, Article 4 of Protocol 4 separately and read in conjunction with Article 13.

On the 7 July 2015 the ECtHR communicated the complaint of collective expulsions and read in conjunction with Article 13 to the Spanish government and found the remainder of the applicants submissions to be inadmissible. 

Decision & Reasoning: 

After setting out the main pieces of applicable EU and international legislation, including relevant case law from the CJEU (Khaled Boudjlida) on the right to be heard, notably with respect to the Return Directive, the ECtHR first assessed the allegations of the Spanish government under Article 1 ECHR.

In response to the government’s submissions that the applicants had not in fact been within the Spanish territory since they had not succeeded in going beyond the internal fence and thus Article 4 Protocol 4 could not be relied upon, the Court noted that the exercise of a Contracting State’s jurisdiction is necessary in order to trigger their responsibility under the Convention. Whilst a State’s jurisdiction is principally territorial the Court has found that the control and authority over an individual by a State’s agent or acts by a State which produce effects outside of their territory to fall within the scope of Article 1 (Al-Skeini and Others; Hirsi Jamaa). In this case it was unnecessary to assess whether the border fence between Spain and Morocco fell within Spanish territory or not. What did matter was whether there had been an effective control by the authorities over an individual (de jure control) regardless of whether the individual was within the territory or at the border. According to the Court, as soon as the applicant came down from the border fences they were within the continued and exclusive control of the Spanish authorities, creating, at least, a  de facto exercise of jurisdiction. Therefore, there was no doubt that the facts of the case, leading to the present allegations, triggered the jurisdiction of Spain under Article 1 ECHR.  

As to the rest of the preliminary objections by the Government, namely that the applicants could not be identified from the poor quality of videos, that they had lost their victim status since they had later managed to access Spanish territory, lawyers and interpreters and only N.D. had applied for international protection, the Court rejected such argumentation and held that the applicants did, in fact, have victim status. The applicants had provided a coherent factual background to the events of 13 August 2014, their visual evidence was credible and the evidence had not been more clear since the applicants had not been subject to any identification process. The government was therefore not able to hide behind the argument that there was a lack of identification of the individuals when it was Spain’s responsibility to undertake said identification. Moreover, the applicants had not lost their status simply because of a later successful arrival into the Spanish territory. Ultimately there had been no examination of the alleged violations of the Convention.  Lastly, the government’s submission that the applicants had not exhausted all domestic remedies was similarly ill-fated since the applicants complained of a collective expulsion without any identification procedure or examination of personal circumstances and not the removal decisions which were later given to them on a separate occasion.

As to the merits of the case, the Court recalled the principles of Article 4 Protocol 4 as interpreted in its case law. As such, the prohibition of collective expulsions prevents States from removing aliens without examining their personal situation and, as a consequence, without allowing them to present arguments against the measure of expulsion (Hirsi Jamaa and Others; Sharifi and Others). In response to the government’s arguments that there had been no expulsion and no element of collectivity the Court held that the terms of the Convention must be read alongside international instruments that contracting States of the Convention are bound by. In this particular case it was unnecessary to establish whether the applicants were expelled after entering the territory or were refouled before entering. Since Hirsi Jamaa has established that interceptions on the high seas fall within the scope of Article 4 Protocol 4 the same can only be said for the refusal of entry for those attempting to enter Spain. In light of Spain’s jurisdiction over the individuals there was no doubt that the applicants were removed from Spain and sent towards Morocco without their consent, plainly constituting expulsion under Article 4 Protocol 4.

As to whether the expulsion was collective, the Court, citing from Conka, noted that the applicants, along with others, were sent back as a standardised response to their entry attempts, they were returned without any administrative or judicial measure being first taken and at no point were they subject to a procedure. The question of whether their individual circumstances were taken into account did not even arise since no identification procedure took place. It is with this in mind that there was no doubt that Spain had violated the prohibition of collective expulsions.

Lastly and in respect to Article 13 read in conjunction with Article 4 Protocol 4, the Court held that Article 13 must be effective in practice and in law. As to the suspensive effect of a remedy the Court has concluded differently according to the risk an individual potentially faces in case of return. In Khlaifia this led the Court to find that a remedy does not need to be suspensive if, when arguing that an expulsion had been collective, the applicant had not alleged a violation of Articles 2 or 3 of the Convention.  In this particular case the question of suspensive effect of a remedy did not arise since there had been no identification procedure. In this respect the Court attached considerable weight to the applicants testimonies, since they were collaborated with numerous reports. Having previously found the expulsion to have been collective and that the applicants neither had access to an interpreter, information on the asylum and/or removal procedure and that there was a clear link between the collective expulsion and the prevention of accessing a national procedure which would satisfy Article 13 requirements, the Court found that the applicant had been denied an effective and rigorous remedy which would allow them to contest the collective expulsion. 

Outcome: 

Violation of Article 4 Protocol 4 and Article 4 Protocol 4 read in conjunction with Article 13.

Under Article 41 the applicants where given 5000 euros for moral damage.

Observations/Comments: 

The judgment was accompanied by one partially dissenting opinion from Judge Dedov who found the violation of Article 4 Protocol 4 to not be serious.

The AIRE Centre, ECRE, the ICJ and Amnesty International intervened as third parties to this case. Their submission can be found here.

 A commentary on this case has been written by Hanaa Hakiki and can be found here. 

Case Law Cited: 

ECtHR - Ilascu and Others v Moldova and Russia [GC], Application No. 48787/99

ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Hassan Ahmed ABDI IBRAHIM v. United Kingdom (dec.), Application No 14535/10

ECtHR - Khlaifia and Others v. Italy ([GC], no. 16483/12,15 December 2016

ECtHR - Berdzenishvili and Others v. Russia, nos 14594/07

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Al-Skeini and Others v. United Kingdom [GC], (no. 55721/07)

ECtHR - Shioshvili and Others v. Russia, no 19356/07
Other sources cited: 

 Le décret royal 557/2011 du 20 avril 2011 (règlement d’application de la loi organique 4/2000 du 11 janvier 2000 relative aux droits et libertés des étrangers en Espagne et à leur intégration sociale « LOEX »

Le Protocole opératoire de surveillance des frontières de la Guardia Civil du 26 février 2014 ayant introduit l’expression « frontière opérationnelle »

La loi organique 4/2000 du 11 janvier 2000 relative aux droits et libertés des étrangers en Espagne et à leur intégration sociale telle que modifiée, entre autres, par la loi 4/2015 du 30 mars 2015 relative à la protection de la sécurité des citoyens.

La Convention de Vienne sur le droit des traités du 23 mai 1969.

UN GA résolution A/RES/69/119 du 10 décembre 2014

Le rapport du Comité pour la prévention de la torture et des peines ou traitements inhumains ou dégradants du Conseil de l’Europe (CPT) - 14 - 18 July 2014

Le rapport annuel d’activité 2015 de Nils Muižnieks, Commissaire aux droits de l’homme du Conseil de l’Europe (Commissaire DH), du 14 mars 2016

Le communiqué de presse publié le 16 janvier 2015 à l’issue de la visite (du 13 au 16 janvier 2015) du Commissaire DH en Espagne

Authentic Language: 
French
State Party: 
Spain