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CASE OF N.D. AND N.T. V. SPAIN, Resúmenes de Derecho

Sentencia del TEDH sobre el caso nd y nt vs España

Tipo: Resúmenes

2019/2020

Subido el 17/10/2020

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GRAND CHAMBER
CASE OF N.D. AND N.T. v. SPAIN
(Applications nos. 8675/15 and 8697/15)
JUDGMENT
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
STRASBOURG
13 February 2020
This judgment is final but it may be subject to editorial revision.
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GRAND CHAMBER

CASE OF N.D. AND N.T. v. SPAIN

(Applications nos. 8675/15 and 8697/15)

JUDGMENT

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

STRASBOURG

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”)...............................................................

  1. The text of the Directive .....................................................................................
  2. Relevant case-law of the CJEU in relation to this Directive .............................. H. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [subsequent version: Directive 2013/32/EU of 26 June 2013]...................................................................... I. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third- country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) ............................................................................................ J. European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)).........................................................................

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 ...............................................................................

  1. General principles ...............................................................................................
  2. Application to the present case ...........................................................................

III. THE GOVERNMENT’S OTHER PRELIMINARY OBJECTIONS ....... A. The applicants’ alleged loss of victim status ............................................... B. Exhaustion of domestic remedies ................................................................

  1. The Government .................................................................................................
  2. The applicants .....................................................................................................
  3. The Court’s assessment ......................................................................................

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 ..................................

  1. The Government .................................................................................................
  2. The applicants ..................................................................................................... C. The third parties’ observations.....................................................................

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:

PROCEDURE

  1. The case originated in two applications (nos. 8675/15 and 8697/15) against the Kingdom of Spain. The applications were lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Malian national, N.D., the applicant in application no. 8675/15 (“the first applicant”), and a national of Côte d’Ivoire, N.T., the applicant in application no. 8697/15 (“the second applicant”), on 12 February 2015.
  2. The applicants were represented by Mr C. Gericke and Mr G. Boye, lawyers practising in Hamburg and Madrid respectively. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human RigM.A. v. lihts Legal Department, Ministry of Justice.
  3. In their applications the applicants alleged, in particular, a violation of Article 3 and Article 13 of the Convention, of those two Articles taken

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.

  1. The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). By a decision of 7 July 2015 the Government were given notice of the complaints under Article 4 of Protocol No. 4 and Article 13 of the Convention, and under both those Articles taken together. The Court decided to join the applications and found the remaining complaints inadmissible (Rule 54 § 3).
  2. Mr Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Commissioner for Human Rights”) exercised his right to participate in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2).
  3. The Court also received written observations from the Office of the United Nations High Commissioner for Refugees (UNHCR), the United Nations High Commissioner for Human Rights (OHCHR), the Spanish Commission for Assistance to Refugees (CEAR) and, acting collectively, the Centre for Advice on Individual Rights in Europe (the AIRE Centre), Amnesty International, the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists, all of which had been given leave by the President to intervene under Article 36 § 2 of the Convention and Rule 44 § 3.
  4. The parties replied to those observations. They also submitted observations following the delivery on 15 December 2016 of the Court’s judgment in Khlaifia and Others v. Italy [GC] (no. 16483/12).
  5. In a judgment of 3 October 2017 a Chamber of the Third Section of the Court unanimously declared the remaining parts of the applications admissible and held that there had been a violation of Article 4 of Protocol No. 4 and of Article 13 of the Convention read in conjunction with Article 4 of Protocol No. 4. The Chamber was composed of Branko Lubarda, President, Luis López Guerra, Helen Keller, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar. Judge Dedov expressed a partly dissenting opinion concerning the award of just satisfaction.
  6. On 14 December 2017 the Government requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 29 January 2018 the panel of the Grand Chamber granted that request.
  7. The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24.
  • for the Commissioner of Human Rights of the Council of Europe Ms D. MIJATOVIĆ, Commissioner , Ms F. KEMPF, Ms A. WEBER, Advisers ;
  • for the Office of the United Nations High Commissioner for Refugees Ms G. O’HARA, Director, Division of International Protection, Ms M. GARCÍA, Mr R. WANIGASEKARA, Advisers.

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.

THE FACTS

I. THE BACKGROUND TO THE CASE

  1. The autonomous city of Melilla is a Spanish enclave of 12 sq. km located on the north coast of Africa and surrounded by Moroccan territory. It lies on the migration route from North and sub-Saharan Africa which is also used by Syrian migrants. The border between Melilla and Morocco is an external border of the Schengen area and thus provides access to the European Union. As a result, it is subject to particularly intense migratory pressure.
  2. The Spanish authorities have built a barrier along the 13 km border separating Melilla from Morocco, which since 2014 has comprised three parallel fences. The aim is to prevent irregular migrants from accessing Spanish territory. The barrier consists of a six-metre-high, slightly concave, fence (“the outer fence”); a three-dimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”). Gates have been built into the fences at regular intervals to provide access between them. A sophisticated CCTV system (including infrared cameras), combined with movement sensors, has been installed and most of the fences are also equipped with anti-climbing grids.
  3. There are four land border crossing points between Morocco and Spain, located along the triple fence. Between these crossings, on the Spanish side, the Guardia Civil has the task of patrolling the land border and the coast to prevent illegal entry. Mass attempts to breach the border fences are organised on a regular basis. Groups generally comprising

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.

  1. Those migrants who do not manage to evade the Guardia Civil , and whom the officials succeed in persuading to come down of their own accord using ladders, are taken back immediately to Morocco and handed over to the Moroccan authorities, unless they are in need of medical treatment (see paragraph 58 below).
  2. At the time of the events this modus operandi was provided for only by the Guardia Civil “Border control operations protocol” of 26 February 2014 and by service order no. 6/2014 of 11 April 2014 (see paragraph 37 below).
  3. On 1 April 2015 the tenth additional provision of Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) came into force. The additional provision was inserted by means of Institutional Law 4/2015 of 30 March 2015 laying down special rules for the interception and removal of migrants in Ceuta and Melilla (see paragraphs 32 and 33 below).

II. THE CIRCUMSTANCES OF THE CASE

A. Origins of the case

  1. The first applicant was born in 1986 and the second applicant in
  2. The first applicant left his village in Mali on account of the 2012 armed conflict. After spending a few months in a refugee camp in Mauritania and then in Algeria, he arrived in Morocco in March 2013 and reportedly lived in the “informal” migrants’ camp on Mount Gurugu, close to the Melilla border. He stated that there had been several raids by the Moroccan security forces and that he had broken his leg during the summer of 2014 while fleeing from them.
  3. The second applicant arrived in Morocco in late 2012 after travelling through Mali. He also stayed in the Mount Gurugu migrants’ camp.

B. The events of 13 August 2014

  1. On 13 August 2014 two attempted crossings took place, organised by smuggling networks: one at 4.42 a.m. involving 600 people, and another at 6.25 a.m. involving 30 people. The applicants stated that they had taken part in the first of these. They had left the Mount Gurugu camp that day and tried to enter Spain together with their group, scaling the outer fence

(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.

  1. An order for the second applicant’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 following the dismissal of his administrative appeal ( de alzada ). He was accommodated in the Melilla CETI and in November 2014 was transferred to the Spanish mainland. The order for his expulsion became final on 11 July 2015. The second applicant did not apply for international protection. On expiry of the maximum period of 60 days’ immigration detention he was released. Since then he has apparently been staying unlawfully in Spain, probably in Andalusia and without any fixed address, according to the statements made by his lawyers at the hearing before the Court.
  2. Both applicants were represented by lawyers during these proceedings.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. DOMESTIC LAW AND PRACTICE

A. Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”)

  1. The relevant provisions of the LOEX as in force at the material time read as follows:

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. ...

  1. The preceding paragraphs shall not apply to aliens claiming the right of asylum on entering Spain. Such claims shall be dealt with under the specific legislation on asylum.”

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 ) “...

  1. The creation of an expulsion file is not required for the removal of aliens who ... (b) attempt to enter the country illegally; ...”

C. Royal Decree 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum)

  1. The relevant provisions of Royal Decree 203/1995 read as follows:

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.

  1. Where the UNHCR’s representative in Spain makes a request to the Spanish Government for the urgent admission of one or more refugees under UNHCR’s mandate who are at high risk in a third country, the Ministry of Foreign Affairs, via the diplomatic mission or consulate of Spain or of another country ... shall issue visas ... to facilitate the transfer of the persons concerned to Spain in conformity with Articles 16 and 29 (4) of this decree.”

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.

  1. The Asylum and Refugees Office shall communicate the approval of the Inter-ministerial Committee to the Ministry of Foreign Affairs and to the Directorate- General of Police, which shall inform the relevant border post.
  2. An asylum-seeker whose transfer to Spain has been authorised on account of the risks he or she faces shall be informed of his or her rights under Part 2 of Chapter I of this decree. He or she shall have a maximum period of one month from his or her entry into Spanish territory in which to exercise those rights.
  3. The competent body of the Ministry of Social Affairs shall adopt the appropriate measures for reception of the asylum-seeker by the designated public or private institution.”

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.

  1. The Asylum and Refugees Office may request such reports as it deems appropriate from the organs of the State administration or from any other public entity.
  2. Likewise, the reports of UNHCR and of the legally recognised associations providing advice and assistance to refugees shall be included in the file where appropriate.
  3. The maximum period for processing the file shall be six months. If no decision has been taken on the asylum application on expiry of this period, the application may be considered to have been rejected, without prejudice to the obligation of the administrative authorities to take an express decision. In cases where the application is processed by a diplomatic or consular mission, the six-month period shall begin to run from the date of receipt of the application by the Asylum and Refugees Office.
  4. Where the procedure is halted for reasons attributable to the asylum-seeker, the Asylum and Refugees Office shall inform him or her that the procedure will expire after three months. If this period expires without the individual in question carrying out the necessary actions to revive the procedure, the procedure shall be discontinued and the interested party shall be notified at his or her last known address.”

Article 29 – Effects of granting asylum “...

  1. Where the applicant has presented his or her application at a Spanish diplomatic or consular mission, these entities shall issue the visa or entry authorisation necessary for his or her travel to Spain, together with a travel document if necessary, as provided for by Article 16.”

D. Royal Decree 557/2011 of 20 April 2011 (implementing regulations for the LOEX)

  1. The relevant provisions of Royal Decree 557/2011 read as follows:

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

  1. The relevant parts of this circular read as follows: “Law 12/2009 of 30 October 2009 on asylum and subsidiary protection, published in the Official Gazette on Saturday 31 October 2009 ... [Section 38 of this Law concerns ‘persons applying for international protection in embassies and consulates’] ... The key elements of this section are as follows. (1) This section is not applicable if the person concerned is a national of the country where the diplomatic representation is located. (2) In addition, his or her physical integrity must be at risk from causes linked to the scope of application of the Law (asylum or subsidiary protection). (3) It is the task of Spanish ambassadors (but under no circumstances of consuls) to ‘facilitate [where appropriate] the transfer of the asylum-seeker or asylum-seekers to Spain’ for the sole purpose of ‘submitting the asylum claim in accordance with the procedure laid down by this Law’, that is to say, in Spain. This authority lies with the ambassadors alone. At all events neither ambassadors nor consuls are authorised by law to take a decision on applications for asylum or protection, still less to inform Spain thereof. This is crucial. If such a decision were to be taken, the Spanish State would be obliged to provide [the asylum-seeker with] legal assistance and protection [including against refoulement from the country] and to meet his or her needs (in terms of food and housing), including healthcare needs; section 38 makes no provision for this. Consequently, the fact that someone seeks to lodge an asylum application with an embassy or consulate does not in any circumstances entail the start of a procedure for possible admission. This does not prevent the ambassador, if he or she has determined that the conditions set out above are satisfied in a given case, from confirming the actual nationality [of the person concerned] and verifying whether his or her physical safety is at risk in the manner described above. Every effort must be made to obtain as much information as possible and to compile full records of the case and the allegations made by the potential applicant for asylum or protection. These are to be sent to the Directorate of Consular Affairs and Migration so that the supervisory authority can take cognisance of them, assess them and take a decision. In sum, if in the exercise of his or her duties the ambassador considers that ‘there is a risk to [the asylum-seeker’s] physical integrity’, he or she may secure the person’s

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

  1. In his 2005 annual report, the Spanish Ombudsperson wrote as follows:

“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.”

  1. In presenting her 2013 annual report to the Senate on 9 April 2014 the Spanish Ombudsperson “deplored the heart-rending images of people who had climbed to the top of the fences and stressed that once a person was on Spanish territory – as we believe to be the case [when he or she is on the fences of the Melilla border] – he or she should be dealt with in accordance with the law in force”. The Ombudsperson therefore condemned the practice of immediate removals ( devoluciones en caliente ), which, she reiterated, were not provided for under the LOEX.