ECtHR N.D. and N.T. v. Spain (nos. 8675/15 and 8697/15) [Article 4 Protocol 4, Article 13 ECHR], 3 October 2017

Tuesday, October 3, 2017

On 3 October 2017, the ECtHR delivered its ruling in case N.D. and N.T. v. Spain (nos. 8675/15 and 8697/15), which concerns the complaints brought by a Malian and an Ivorian national who crossed the border fence between Morocco and the Spanish enclave of Melilla on 13 August 2014. Immediately upon descending from the fence, they were apprehended by the Spanish Guardia Civil and sent back to Morocco. They were not subjected to any identification procedure nor had the chance to express their wish to apply for asylum, let alone to receive assistance from lawyers, interpreters or medical personnel.

First, the Court rejected the Spanish Government’s view that the events had occurred outside Spain’s jurisdiction. The Court considered it unnecessary to establish whether or not the border fence erected between Morocco and Spain was located in Spain. In the Court’s opinion, from the moment that the applicants climbed down from the barriers, they had been under the continuous and exclusive control of the Spanish authorities and, thus fell, under its jurisdiction.

Secondly, the ECtHR  noted  that  the  removals  were carried out  in  the  absence  of  any  prior administrative or judicial decision. Consequently, there had been no assessment of each individual situation or any identification procedure. The Court concluded that, in those circumstances, the removals amounted to collective expulsions, in violation of Article 4 Protocol 4.

Thirdly, the Court noted that the applicants had no access to interpreters or to legal assistance for the purpose of informing them of the relevant provisions of asylum law or the procedures available to challenge their expulsion. In view of their immediate expulsion, it considered that the applicants had been deprived access to a domestic effective remedy. Therefore, the ECtHR also found a violation of Article 13 ECHR taken together with Article 4 Protocol 4.

ECRE, the AIRE Centre, Amnesty International and the ICJ submitted a joint third party intervention in this case, which can be read here.

Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Effective access to procedures
Procedural guarantees