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Sentencia del TEDH sobre el caso nd y nt vs España
Tipo: Resúmenes
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CASE OF N.D. AND N.T. v. SPAIN
(Applications nos. 8675/15 and 8697/15)
Art 4 P 4 • Prohibition of collective expulsion of aliens • Immediate and forcible return of aliens from a land border, following an attempt by a large number of migrants to cross it in an unauthorised manner and en masse • No distinction between non-admission and expulsion of aliens for the purposes of applicability of Art 4 P 4 • Availability of genuine and effective access to means of legal entry allowing to claim protection under Art 3 • Absence of cogent reasons for failure to use official entry procedures, which were based on objective facts for which the respondent State was responsible • Lack of individual removal decisions being a consequence of the applicants’ own conduct
13 February 2020
This judgment is final but it may be subject to editorial revision.
rules governing the movement of persons across borders (Schengen Borders Code).............................................................................................. F. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification) ............................................................................................... G. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Return Directive”)...............................................................
III. COUNCIL OF EUROPE DOCUMENTS.................................................... A. Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005 at the 925th meeting of the Ministers’ Deputies ............................................................. B. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) ............................ C. The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”), dated 14 March 2016....................................................... D. Report dated 3 September 2018 of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees, to Spain, 18-24 March 2018 (SG/Inf(2018)25) ......................................................................................... E. Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe, adopted on 28 June 2019: Pushback policies and practice in Council of Europe member States .............................................
IV. OTHER INTERNATIONAL MATERIALS ............................................... A. Charter of the United Nations (UN Charter), signed on 26 June 1945 in San Francisco .......................................................................................... B. Vienna Convention on the Law of Treaties of 23 May 1969.......................
C. Geneva Convention of 28 July 1951 relating to the Status of Refugees ...................................................................................................... D. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT) ....................... E. Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII)) ......... F. International Law Commission’s Draft Articles on the Expulsion of Aliens........................................................................................................... G. Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017 ................................. H. Views adopted by the Committee on the Rights of the Child on 12 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016 .........................................................................
THE LAW...............................................................................................................
I. PRELIMINARY ISSUES ................................................................................. A. Continued examination of the case – Article 37 § 1 (a) .............................. B. Assessment of the evidence and establishment of the facts by the Court ............................................................................................................
II. THE ISSUE OF JURISDICTION UNDER ARTICLE 1 OF THE CONVENTION................................................................................................ A. The Chamber judgment ............................................................................... B. The parties’ submissions.............................................................................. C. The third parties’ observations..................................................................... D. The Court’s assessment ...............................................................................
III. THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS ....... A. The applicants’ alleged loss of victim status ............................................... B. Exhaustion of domestic remedies ................................................................
IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION................................................................................ A. The Chamber judgment ............................................................................... B. The parties’ submissions before the Grand Chamber ..................................
In the case of N.D. and N.T. v. Spain, The European Court of Human Rights, sitting as a Grand Chamber composed of: Linos-Alexandre Sicilianos, President, Angelika Nußberger, Robert Spano, Vincent A. De Gaetano, Ganna Yudkivska, André Potocki, Aleš Pejchal, Faris Vehabović, Mārtiņš Mits, Armen Harutyunyan, Gabriele Kucsko-Stadlmayer, Pauliine Koskelo, Marko Bošnjak, Tim Eicke, Lәtif Hüseynov, Lado Chanturia, María Elósegui, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 26 September 2018, 3 July and 5 December 2019, Delivers the following judgment, which was adopted on the last mentioned date:
together, of Article 4 of Protocol No. 4 to the Convention, and, lastly, of Article 13 taken together with Article 4 of Protocol No. 4. They complained of their immediate return to Morocco, which amounted in their view to a collective expulsion, of the lack of an effective remedy in that regard and of the risk of ill-treatment which they allegedly faced in Morocco. They submitted that they had had no opportunity to be identified, to explain their individual circumstances or to challenge their return by means of a remedy with suspensive effect.
The Court heard addresses by Mr León Cavero, Mr Gericke, Mr Boye, Ms Mijatović and Ms O’Hara, and the replies by Mr León Cavero, Mr Gericke, Mr Boye and Ms O’Hara to questions put by the judges.
several hundred aliens, many of them from sub-Saharan Africa, attempt to enter Spanish territory by storming the fences described above. They frequently operate at night in order to produce a surprise effect and increase their chances of success.
A. Origins of the case
B. The events of 13 August 2014
(CETI) in Melilla before being transferred to the Barcelona CETI in March 2015. He lodged an administrative appeal ( recurso de alzada ) against the expulsion order. On 17 March 2015, while this appeal was still pending, the first applicant lodged an application for international protection. His application was rejected on 23 March 2015 on the grounds that it was unfounded and that the applicant was not at risk, as the UNHCR office had issued an opinion on 20 March 2015 finding that the first applicant’s circumstances did not justify granting him international protection. A request for review lodged by the applicant was rejected by a decision of the Interior Ministry’s Asylum and Refugees Office on 26 March 2015, following a further negative UNHCR opinion issued on the same day. The stay of the administrative expulsion proceedings was therefore lifted and the first applicant was sent back to Mali by airplane on 31 March 2015. The previous day an appeal against the decision refusing international protection had been lodged with the administrative courts, but was withdrawn by the applicant’s representative on 15 September 2015. The first applicant’s administrative appeal against the order for his expulsion was declared inadmissible by a decision of 19 May 2015. As no appeal against that decision was lodged with the administrative courts, the order became final on 26 September 2015. According to the first applicant’s account, he has been living in very precarious circumstances since his return to Mali and has no fixed address.
A. Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”)
Section 25 – Conditions for entering Spain “1. Aliens seeking to enter Spain must do so at the authorised border crossing points. They must be in possession of a passport or travel document that provides proof of their identity and is accepted for that purpose under the international conventions to which Spain is a party, and must not be subject to an explicit entry ban. They must also present the documents required by the implementing regulations [of the present Law] explaining the purpose and conditions of their stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or have the means of obtaining them lawfully. ...
Section 27 – Issuance of visas “1. Visas shall be requested and issued in the Spanish diplomatic missions and consulates, save in the exceptional circumstances laid down in the regulations or in those cases where the Spanish State, in accordance with the Community legislation in this sphere, has entered into a representation agreement with another European Union Member State concerning transit or residence visas. ...”
Section 58 – Effects of expulsion and removal ( devolución ) “...
C. Royal Decree 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum)
Article 4 – Place of lodging of the application “1. Aliens seeking asylum in Spain shall lodge their application with one of the following entities: (a) the Asylum and Refugees Office; (b) the border posts for entry into Spanish territory; (c) Aliens Offices; (d) the provincial or district police stations designated by ministerial order; (e) Spain’s diplomatic missions or consulates abroad.
Article 16 – Transfer of the asylum-seeker to Spain “Where the person concerned is at risk and has submitted his or her application from a third country through a diplomatic mission or a consulate or in the circumstances provided for in Article 4 (2), the Asylum and Refugees Office may submit the case to the Inter-ministerial Committee on Asylum and Refugees with a view to authorising the person’s transfer to Spain pending examination of the file, after the issuance of the corresponding visa, laissez-passer or entry authorisation, which shall be processed as a matter of urgency.
Article 24 – General processing rules “1. The interested party may submit such documentation and additional information as he or she considers appropriate, and formulate such allegations as he or she deems necessary in support of his or her application, at any time during the processing of the file by the Asylum and Refugees Office. These actions must be verified prior to the hearing preceding the sending of the file to the Inter-ministerial Committee on
Asylum and Refugees, in accordance with section 6 of Law 5/1984, which governs the right to asylum and refugee status.
Article 29 – Effects of granting asylum “...
D. Royal Decree 557/2011 of 20 April 2011 (implementing regulations for the LOEX)
Article 1 – Entry via authorised crossing points “1. Without prejudice to the provisions of the international conventions to which Spain is a party, aliens seeking to enter Spanish territory must do so via the authorised border crossing points. They must be in possession of a valid passport or travel document that provides proof of their identity and is accepted for that purpose, and, where required, of a valid visa. They must not be subject to an explicit entry ban. They must also present the documents required by these regulations explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or, where applicable, that they have the means of obtaining them lawfully. ...”
Article 4 – Conditions “1. The entry of foreign nationals into Spanish territory shall be subject to compliance with the following conditions.
delimits the national territory, for the sole purpose of the rules governing aliens, a line which takes the physical form of the fence in question. Hence, where attempts by migrants to cross this line illegally are contained and repelled by the law-enforcement agencies responsible for controlling the border, no actual illegal entry is deemed to have taken place. Entry is deemed to have been effected only where a migrant has penetrated beyond the above-mentioned internal fence, thereby entering the national territory and coming within the scope of the rules governing aliens ...”
F. Circular letter to all Spanish ambassadors
transfer to Spain (this may entail issuing a visa and a one-way airline ticket to Spain, subject to prior approval by the Ministry). The second sub-section of section 38 provides for the adoption of implementing regulations, to be drawn up jointly by the Ministries of the Interior, Justice and Foreign Affairs. These regulations will lay down the procedure enabling ambassadors to assess the issue of possible transfer to Spain. With regard to proceedings already in progress, the first transitional provision provides, where relevant, for application of the rules in force prior to the entry into force of the new Law (which will apply as of today, 20 November 2009). For new cases, and until such time as the implementing rules for the Law, referred to in the second sub-section of section 38, enter into force, you should follow the instructions set out in this circular. ... Madrid, 20 November 2009”.
G. The Spanish Ombudsperson’s Office
“As regards the issue whether the border zone should be regarded as Spanish territory and, accordingly, which rules are applicable to it, [it can be asserted, in] the light of the various conventions signed during the nineteenth century between Spain and Morocco defining the jurisdictional limits of the autonomous city of Melilla, that the zone is constructed ... on Spanish territory, that Spain has full ownership [of the area in question] and that it is controlled by the Spanish law-enforcement agencies. It is therefore not for the Spanish administrative authorities to determine where our country’s legislation should start to apply. That territorial application is governed by international treaties or, where applicable, by international custom, which define the borders with neighbouring States.”