The return of refugees/immigrants who do not abide by the legal procedures does not violate the ECHR
J0UDGMENT
N.D. and N.T. v. Spain 13.02.2020 ( no. 8675/15 and 8697/15).
SUMMARY
The case concerned the immediate return to Morocco of two nationals of Mali and Côte d’Ivoire
who on 13 August 2014 attempted to enter Spanish territory in an unauthorised manner by climbing
the fences surrounding the Spanish enclave of Melilla on the North African coast.
The Court considered that the applicants had in fact placed themselves in an unlawful situation
when they had deliberately attempted to enter Spain on 13 August 2014 by crossing the Melilla
border protection structures as part of a large group and at an unauthorised location, taking
advantage of the group’s large numbers and using force. They had thus chosen not to use the legal
procedures which existed in order to enter Spanish territory lawfully. Consequently, the Court
considered 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.
In so far as it had found that the lack of an individualised procedure for their removal had been the
consequence of the applicants’ own conduct, the Court could not hold the respondent State
responsible for the lack of a legal remedy in Melilla enabling them to challenge that removal.
PROVISIONS
Article 4 of the 4th Protocol
Article 3
PRINCIPAL FACTS
The applicants, N.D. and N.T., are nationals of Mali and Côte d’Ivoire who were born in 1986 and
1985 respectively. The first applicant stated that he had left Mali on account of the armed conflict
there in 2012. After travelling through Mauritania and Algeria he arrived in Morocco in March 2013
and apparently stayed in the migrants’ camp on Mount Gurugu, close to the border with Melilla. The
second applicant arrived in Morocco at the end of 2012 and also stayed in the migrants’ camp.
The autonomous city of Melilla is a Spanish enclave of 12 sq. km on the North African coast which is
surrounded by Moroccan territory. The Spanish authorities have built a barrier along the 13 km
border which since 2014 has comprised three parallel fences. Four border crossing points are
located along the triple fence. Between these points Guardia Civil officials patrol the land border and
the coast in order to prevent illegal entry. Groups of foreign nationals from, among other places,
sub-Saharan Africa make frequent attempts to breach the fences.
In the early morning of 13 August 2014 an initial attempt at entry took place. According to the
Government, the Moroccan police prevented around 500 migrants from scaling the outer fence, but around a hundred migrants nevertheless succeeded. Some 75 migrants managed to reach the top of the inner fence but only a few came down the other side and landed on Spanish soil, where they
were met by members of the Guardia Civil. The others remained sitting on top of the inner fence.
Guardia Civil officials helped them to climb down, before escorting them back to Moroccan territory
on the other side of the border through the gates between the fences.
N.D. and N.T. reportedly managed to reach the top of the inner fence and remained there for several
hours. At around 3 p.m. and 2 p.m. respectively they climbed down from the fence with the help of
Spanish law-enforcement officials who provided them with ladders. As soon as they reached the
ground they were apprehended by Guardia Civil officials who reportedly handcuffed them, took
them back to Morocco and handed them over to the Moroccan authorities. The applicants allegedly
did not undergo any identification procedure and had no opportunity to explain their personal
circumstances to the officials or to be assisted by lawyers or interpreters. They were reportedly
transferred to Nador police station, a few kilometres south of Melilla. There they allegedly
requested, and were refused, medical assistance before being taken to Fez, some 300 km away, and
being left to fend for themselves.
THE DECISION OF THE COURT…
Article 4 of Protocol No. 4
The Court noted that the applicants had been members of a group comprising numerous individuals
who had attempted to enter Spanish territory by crossing a land border in an unauthorised manner,
taking advantage of their large numbers and in the context of an operation that had been planned in
advance. The applicants’ complaints under Article 3 had been declared inadmissible by the Chamber.
The applicants had not been identified and no written procedure had been undertaken to examine
their individual circumstances. Their return to Morocco had therefore been a de facto individual but
immediate handover, carried out by Spanish border guards.
With regard to Contracting States like Spain whose borders coincided with external borders of the
Schengen area, the effectiveness of Convention rights required that those States make available
genuine and effective access to means of legal entry, in particular border procedures for those who
arrived at the border. Those means should allow all persons who faced persecution to submit an
application for protection, based in particular on Article 3 of the Convention (prohibition of torture
and inhuman or degrading treatment), under conditions which ensured that the application was
processed in a manner consistent with the international norms, including those of the Court. Where
arrangements existed securing the right to request protection under the Convention, and in
particular Article 3, in a genuine and effective manner, the Convention did not prevent States, in the
fulfilment of their obligation to control borders, from requiring applications for such protection to be
submitted at the existing border crossing points. Consequently, States could refuse entry to their
territory to aliens, including potential asylum-seekers, who had failed without cogent reasons to
comply with those requirements and had sought to cross the border at a different location,
especially, as happened in this case, by taking advantage of their large numbers and using force.
The Court noted that Spanish law had afforded the applicants several possible means of seeking
admission to the national territory. They could have applied for a visa or for international protection,
in particular at the border crossing point, but also at Spain’s diplomatic and consular representations
in their respective countries of origin or transit or else in Morocco.
On 1 September 2014 the Spanish authorities had set up an office for registering asylum claims,
open around the clock, at the Beni Enzar international border crossing point. Even prior to that date
a legal avenue to that effect had been established under section 21 of Law 12/2009. The
Government stated that twenty-one asylum applications had been lodged between 1 January and
31 August 2014 in Melilla, including six applications lodged at the Beni Enzar border crossing point,
with the asylum-seekers then being escorted to the Melilla police station in order to make a formal application. The individuals in question had come from Algeria, Burkina Faso, Cameroon, Congo, Côte d’Ivoire and Somalia.
The Court therefore saw no reason to doubt that even prior to the setting-up of the special
international protection office at Beni Enzar on 1 September 2014 there had been a legal obligation
to accept asylum applications at that border crossing point, and also an actual possibility to submit
such applications. The mere fact – not disputed by the Government – that only very few asylum
requests had been submitted at Beni Enzar prior to 1 September 2014 did not allow the conclusion
that the respondent State had not provided genuine and effective access to that border crossing
point.
In the written procedure before the Grand Chamber the applicants did not allege that they had ever
tried to enter Spanish territory by legal means. Only at the Grand Chamber hearing did they state
that they had attempted to approach Beni Enzar but had been “chased by Moroccan officers”. Quite
apart from the doubts surrounding this allegation owing to the fact that it had been made at a very
late stage of the procedure, the Court noted that at no point had the applicants claimed that the
obstacles encountered were the responsibility of the Spanish authorities.
Hence, the Court was not persuaded that, at the material time, the applicants had had the required
cogent reasons for not using the Beni Enzar border crossing point with a view to submitting reasons
against their expulsion in a proper and lawful manner.
Article 4 of Protocol No. 4 did not entail a general duty for a Contracting State to bring persons who
were under the jurisdiction of another State within its own jurisdiction. Even assuming that
difficulties had existed in physically approaching the Beni Enzar border crossing point on the
Moroccan side, no responsibility of the respondent Government for this situation had been
established. That finding sufficed for the Court to conclude that there had been no violation of
Article 4 of Protocol No. 4 in the present case.
Examining the possibilities referred to by the Spanish Government for accessing Spanish embassies
and consulates where an application for international protection could be submitted, the Court
observed that the Spanish consulate in Nador was only 13.5 km from Beni Enzar and hence from the
location of the storming of the fences on 13 August 2014. The applicants, who stated that they had
stayed in the Gurugu camp for two years (in N.D.’s case) and for one year and nine months (in N.T.’s
case), could easily have travelled there had they wished to apply for international protection. They
did not give any explanation to the Court as to why they had not done so, nor did they allege that
they had been prevented from making use of that possibility. Lastly, the applicants did not dispute
the genuine and effective possibility of applying for a visa at other Spanish embassies, either in their
countries of origin or in one of the countries they had travelled through since 2012. In N.D.’s case, a
special treaty between Spain and Mali had even afforded a possibility of obtaining a special working
visa.
The Court considered that the applicants had in fact placed themselves in jeopardy by participating
in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group’s
large numbers and using force. They had not made use of the existing legal procedures for gaining
lawful entry to Spanish territory in accordance with the provisions of the Schengen Borders Code
concerning the crossing of the Schengen area’s external borders. Consequently, the Court
considered that the lack of individual removal decisions could be attributed to the fact that the
applicants 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.
Accordingly, there had been no violation of Article 4 of Protocol No. 4.
Article 13 taken in conjunction with Article 4 of Protocol No. 4
The Court noted that Spanish law had provided a possibility of appeal against removal orders at the
border, but that the applicants themselves had also been required to abide by the rules for
submitting such an appeal against their removal.
In so far as the Court had found that the lack of an individualised procedure for their removal had
been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation
by crossing the Melilla border protection structures on 13 August 2014 as part of a large group and
at an unauthorised location, it could not hold the respondent State responsible for the absence of a
legal remedy in Melilla enabling them to challenge that removal.
In so far as the applicants’ complaint regarding the risks they were liable to face in the destination
country, Morocco, had been dismissed at the outset of the procedure when the Article 3 complaint
had been declared inadmissible, the lack of such a remedy did not in itself constitute a violation of
Article 13.
Accordingly, there had been no violation of Article 13 of the Convention taken in conjunction with
Article 4 of Protocol No. 4.
Separate opinions
Judge Pejchal expressed a concurring opinion. Judge Koskelo expressed a partly dissenting opinion.
These opinions are annexed to the judgment.
