Judgement ND and NT v Spain: on the legality of police “push-backs” at the borders and, again, on the prohibition of collective expulsions.

By Prof. Dr. David Moya, Constitutional Law Department of the University of Barcelona, Migration Research and Studies Centre CERM, Public Law Observatory IDP

Last week, the 3rd Section of the European Court of Human Rights published its Judgement ND and NT v. Spain, in a case brought before the Court by two foreigners from Mali and the Ivory Coast (Mr. ND and Mr. NT) who alleged to have been “pushed back” by the Spanish gendarmerie Guardia Civil in charge of the surveillance and protection of the Spanish border between the Spanish Autonomous City of Melilla and the Kingdom of Morocco. The applicants alleged that the push-back violated their right to an effective remedy (Art. 13 ECHR) and the prohibitionof collective expulsions (Art. 4 Protocol 4 ECHR).

1.- Contextualization. The disputed legal regime of police “push-backs” under Spanish Law

In Spain police “push-backs” at the Moroccan border are known as “devoluciones en caliente”, and they have been a topic of heated debate among Spanish Migration lawyers for years. But since 2012 they became a matter of broad public concern, because attempts to enter the cities started to be conducted in increasingly bigger groups, often outnumbering the border guards. Since 2013, the police push-backs generalized and became the common response to deal with people caught at the fences or their perimeter: whenever illegal entrants were stopped, or got trapped at the fences, Spanish police handed them back to the Moroccan police at the other side of the fence[1]. This was the case for ND and NT, who stayed for more than two years near the fence in an informal encampment at Mount Gorurougou in Morocco, and were caught when trying to climb the fence one day of August of 2014. As a consequence, they were pushed-back and handed over to the Moroccan police, which took them to Nador and later on to Fez (some 300 km far from Nador) where they were abandoned to their own fate. This was not an isolated case: the applicants claimed some other 75-80 migrants were similarly pushed-back to Morocco on that day.

The Spanish Immigration Act 4/2000 (amended) includes different types of removal measures to be taken at the border against illegal entrants, but to put it shortly, for those trying to enter illegally and being caught in such attempt – usually near the border – the immediate removal of art. 58.2 is the appropriate measure to be applied. On the contrary, lawyers and police use the term “devoluciones en caliente” to identify police activity at the border usually consisting of physically apprehending the immigrants – sometimes after hours of negotiation, sometimes just pulling them down from the fence – then police handcuffs them and carries them to the gates of the fence, and turns them in to the Moroccan police waiting at the other side of the fence. But these kinds of “devoluciones in caliente” or “push-backs” are conducted without any administrative procedure or safeguard, resulting in the absence of any kind of judicial control. Therefore, they cannot be materially considered as “devoluciones” regulated by Art. 58.2. However, a 2015 legal reform of the Immigration Act 4/2000 ambiguously stated that police patrolling the borders of Ceuta and Melilla could push-back anyone trying to illegally enter there.

2.- The proceedings before the Court

There are at least two interesting questions worth highlighting regarding the procedure that took place before the ECtHR and that involved the applicants, the Spanish government and… eight institutions submitting written observations, among them ,and perhaps unsurprisingly, the CoE Commissioner for Human Rights and two UN bodies (the High Commissioner for Refugees and the High Commissioner for Human Rights).

First, the Court reaffirms its long-standing notion of jurisdiction according to which territoriality admits exceptions wherever the State controls and exercises authority over an individual outside of its territory. Moreover, in TD and TS v. Spain the Court goes beyond Hirsi Jamaa [2], stating that as soon as the applicants descended from the fence they were under the “continued and exclusive control” of Spanish authorities therefore creating, at least, a de facto exercise of jurisdiction. The distinction between de facto and de jure jurisdiction has been clearly established by the Court in a set of different cases around application Art. 1 in territories under dispute or occupation,[3] but in the present case it is used to support the Court’s extension of Spanish jurisdiction to include police activity at the borders.

Second, the Court dismisses the State allegations disputing the applicants’ status of “victims” in the sense of Art. 34 of the Convention. The Court established victim status on the basis of two pieces of evidence: on one hand, the consistency of their account of the facts of the case; on the other, that the images provided to support their accounts added credibility to their stories. But it is the final reasoning of the Court which is crucial: the Government had the duty to identify the illegal entrants, if it failed to comply with such duty it could not hide behind such argument to deny victim status to the applicants, especially if they produced a reliable and consistent account of the facts and submitted the evidence they could collect. Clearly, the Court took into consideration not only the evidence produced, but also the different means and efforts by the parties to support their claims.

 3.- The merits of the case: the violation of the prohibition of collective expulsions and the right to an effective remedy

The applicants asked the Court to decide if their push-back to Morocco breached their right not to be collectively expulsed (Art. 4 Protocol 4 ECHR) and their right to an effective remedy (Art. 13 ECHR).

Regarding the first question, the Court by unanimity (including the Spanish Judge), declared that the explicit prohibition of collective expulsions in Art. 4 Protocol 4 ECHR also applies to push-backs both at sea and at territorial borders. With NT and ND v. Spain, the Court makes it clear that its interpretation of the prohibition of collective expulsion is not limited to just expulsions as a legal category mostly governed by domestic law and EU Law. The inclusion of any removal measure taken within the territory, at the borders or event extraterritorially under the prohibition of Art. 4 Protocol 4 obviously needed some extra justification. This is why in a short paragraph the Court resorts to different interpretation techniques to support such extension beyond the usual domestic understanding and definition of expulsion (see para. 103). Personally, I consider the soundest argument to be the one about the need to ensure the effective protection of human rights, a principle that guides the interpretation of the Convention; in this sense, the Court considers that only by enlarging the meaning of expulsion to include also removals, such protection might be deemed effective. In arguing this, the Court recalls the cases of Hirsi Jamaa, Sharifi and others, but also Khlaifia and others v. Italy of 15 December 2016, highly relevant here as well. About the collective character of the expulsion, the Court’s reasoning becomes less speculative: in the absence of any administrative or judicial proceedings, which guarantee that sufficient safeguards are provided to illegal entrants or that their personal circumstances are taken into consideration, the only way to conceptualize a general measure applied to a whole group of 75-80 individuals regardless of their potentially different individual circumstances, needs or rights, is to consider it as a collective expulsion  contrary to Art. 4 Protocol 4.

The Court also finds a breach of Art. 13 ECHR in this case. It recalls the difficult debate concerning the Convention requirement to grant suspensive effects to the legal remedies available under certain circumstances (para 115), and in doing so the Court revisits Khlaifia II. Having clarified its position in this regard, two paragraphs later the Court drops its missile: in the present case, it is unnecessary to examine this question, because there is in any event no legal remedy at all available for the applicants. The Court goes on taking a more severe approach to conclude that, in the present case, the lack of even minimal administrative actions such as a due identification of the illegal entrants, the provision of basic information to entrants by interpreters and agents on the possibility to lodge an asylum application or to appeal against their push-back/expulsion, etc… left the applicants defenceless against their push-back. Thus, the Court concludes that there has been a violation of Art. 13 together with Art. 4 Protocol 4 ECHR.

Conclusion

From an International point of view, the Court consolidates and even unifies its case-law on the regime of push-backs both at sea and at territorial borders, surrounding it with some key guarantees. In doing so, it contributes to the emergence of an autonomous concept of expulsion, at least regarding Art. 4 Protocol 4 ECHR. From the domestic point of view, this was a much-awaited Judgement in Spain. Such a clear and unanimous judgment casts serious doubts about the constitutionality of push-backs and the 2015 reform of the Immigration Act 4/2000, unless a minimum set of safeguards will be granted to entrants (identification, a minimum hearing, an individualised assessment of the individual claims, etc…). This is reasonable good news, although calls for a higher fence and more securitization of the border are starting to be heard. There will be less optimistic readings of the consequences of this Judgement, I am afraid.

[1] Tap the words “devoluciones en caliente” and Google will return you a set of images and videos that offer a general picture of the place and conditions in which they are applied. For all, see the video recorded by the Prodein NGO at https://vimeo.com/109010316, later on used as evidence to document those practices before the Court.

[2] In that Judgment the Court stated that a registered vessel or aircraft are “subject to the exclusive jurisdiction of the State of the flag it is flying” so that “acts carried out on board” are basically an “extraterritorial exercise of the jurisdiction of that State” (paras. 75 and 77).

[3] See for all Ilaşcu v. Moldova and Russia of 8 July 2004, but also Issa and Others v. Turkey of 30 of March 2005, Sargsyan v. Azerbaijan of  16 June 2015, Chiragov and others v. Armenia of 16 June 2015 and Mozer v. the Republic of Moldova and Russia, of 23 February 2016.