the Court considers that it was in fact the applicants who placed themselves
in jeopardy by participating in the storming of the Melilla border fences […]”.
This is the conclusion of the European Court of Human Rights (“ECtHR”) in its judgement published on 13th February in the case N.D and N.T v. Spain. The Grand Chamber shockingly endorses a practice which opposes the core principles of International Law and the protection of fundamental rights. This decision repeals a previous ECtHR judgement of 2017 which had condemned push-backs and which Spain had asked to be referred to the Grand Chamber. But all hope is not lost: The Spanish Constitutional Court will rule on the “rejections at the border” provision in the near future and has the chance to uphold Spain’s international legal obligations.
The slap in the face
and N.T, Mali and Côte d’Ivoire nationals, tried to climb over the fence which
separates the Spanish enclave of Melilla, located in the north-west of Africa,
and Morocco in 2014. As is common in this situation,
Spanish police officers (Guardia Civil) apprehended, handcuffed and handed them
over immediately to Moroccan officials.
was no legal proceeding whatsoever, there was no individual assessment of their
circumstances, nor were they offered legal assistance or an interpreter. They
had been injured for hours on top of one of the most impenetrable borders of the World.
Where were they coming from? Were they escaping from a particular threat? Did
they have something to say against their return to Morocco? None of these
questions, whose answers undoubtedly have legal significance, mattered at that moment.
However, the ECtHR Grand Chamber, competent to rule only in the most relevant and decisive cases, has found that Spain did not violate the prohibition of collective expulsions, nor the right to an effective remedy: The applicants should have used legal avenues of reaching Spain and they were victims of their own illegal actions.
ECtHR empties the substance of the protection against collective expulsions and
the right to an effective remedy. It distinguishes between legal and irregular
entry into the territory of a State and attaches to it the consequence of
placing some people outside the protection of the European Convention on Human
Rights (“ECHR”). The ECtHR
blames the victims for not having made use of other “available” legal avenues,
as if trying to jump over the border was a wilful act of disregard for the law
and sovereignty of Spain.
of assessing the acts performed by Spanish officials to determine whether the
expulsion was conducted collectively against Protocol no. 4 of the ECHR and
whether the minimum procedural guarantees of Article 13 ECHR were respected
during such a sensitive act as a forced handing over to the authorities of
another State, the border and migration elements shift the focus towards the
argumentation that people attempting to illegally cross the border have other
options to reach Spain and effectively access an international protection or
migration procedure is a statement as incoherent as it is false (why else, for
instance, would so many people risk their lives if an asylum request could be
lodged at the official crossing point?). Furthermore, it does not undercut
Spain obligations under the ECHR.
consequence of such reasoning is perpetuating borders as no-rights places for
very particular groups: (black) migrants, people from the Global South, the
undesirable minority excluded from the benefits of global free movement encouraged
for everybody else.
Hanaa Hakiki, one of
the applicants’ legal counsellors, stated during a press conference held in
Madrid after the judgement was eleased that “in 20 years, the Court will
UN Committee on the Rights of the Child ruled in 2019 that push-backs conducted by
Spain infringe several provisions of the UN Charter on the Rights of the Child.
This relevant decision has been neglected by the Spanish Government, which has
admitted that only in 2018 there were, at least, 658
people subject to immediate returns at the border. Such a figure evidences
to what extent exceptionality is the normal rule at the border and suggests
that the real figures could be far higher as they reflect a practice which does
not lead to any traceable administrative proceeding and, therefore, is likely
to not be registered in any statistic.
neglection of the UN Committee decision is even more appalling after a far-reaching
judgement by Spanish Supreme Court in 2018 which then ruled that decisions
of UN bodies interpreting international agreements ratified by Spain have a
binding effect. Therefore, the UN Committee of the Rights of the Child, as well
as the decisions of the rest of UN committees, must serve as an authoritative
interpretation of the human rights provisions applicable in Spain.
is in line with the Spanish
Constitution which states that provisions concerning fundamental rights and
freedoms must be interpreted in light of the international agreements ratified
by Spain (article 10.2) and that international agreements take part of the
national legal order once duly ratified and published (article 96). In fact,
States are not prevented from providing a higher level of protection in the
field of fundamental rights, and the Spanish Constitutional Court could go
beyond the interpretation of the ECtHR and declare push-backs contrary to the
Spanish Constitution, as the State
Ombudsman has also been demanding over the years.
“available” legal alternatives mentioned by the ECtHR do not exist. That is
what all third interveners, such as the Commissioner
for Human Rights of the Council of Europe and the UNCHR evidenced
during the proceedings. The applicants could not have applied for international
protection in a crossing point in August 2014, despite the fact that 6
applications had been lodged at the Melilla border in 2014. According to the Court
itself, even after a law amendment which theoretically enabled crossing border
points to receive international protection applications, Beni Enzar point in
Melilla received 0 applications from sub-Saharan nationalities in 2014, 0 in
2015, 2 in 2016 and 0 in 2017. Sub-Saharan migrants are prevented
from gaining access to this proceeding.
applications for protection lodged at a Spanish embassy lack a proper procedure
and are a discretional and exceptional power of the Spanish representative with
real applications nowadays. It is blatant that legal arguments in the
judgement split from reality to justify a punitive interpretation of the ECHR.
has been carrying out push-backs in Ceuta and Melilla for
more than 20 years, despite the protests of civil
society organisations and NGOs. However, Spanish
Governments used to deny and hide these proceedings. Migrants trying to
reach the Spanish enclaves by sea are equally liable to be pushed-backed to
Morocco. Actually, one of these cases put the public spotlight on Spain’s
interventions at the border: in February 2014, Spanish Guardia Civil prevented
a group of people from swimming to the Spanish enclave of Ceuta, even firing
rubber bullets, with
the result of 15 migrants drowning near El Tarajal beach.
of Spanish police forces getting people down from the top of the fence by all
means possible, including
violent use of force, began to flood the news. News
outlets and videos
showed what local NGOs and all kind of organisations had tried to make public
for years. The Spanish Government reacted by amending the Aliens Law (Ley
Orgánica 4/2000) through a
controversial new provision added to the Citizens Security Law (Ley
nobody could deny any longer that immediate returns were the reality at the
border, the conservative PP-Government of the time decided to render this
non-written rule into black on white. Against the concerns of several
international organisations, such as the Council
of Europe or UNCHR,
and NGOs, such as Amnesty
International, the Spanish Government converted push-backs into lawful “rejections
at the border” by virtue of a law amendment.
opposition to the Government strongly positioned against
the legalization of push-backs. Some of these political parties, including
socialist PSOE, lodged an appeal before the
Spanish Constitutional Court against several provisions of the
Citizens Security Law, among them the legalization of “rejections at the
Such an appeal is still pending,
and PSOE has since then steadily included among their electoral promises
to abolish the legal provision on push-backs. However, the acting Government of
Prime Minister Pedro Sánchez decided to maintain the referral of the first
ECtHR judgement to the Grand Chamber and even used the same arguments as the
previous conservative Governments to defend border practices in
Spanish Constitutional Court will rule on the Citizens Security Law, including the
“rejections at the border” provision, in the near future. The decision was awaiting Strasbourg judgement.
Nonetheless, despite the ECtHR ruling, push-backs breach international law and the
Spanish Constitutional Court should not follow the Strasbourg judgement.
political actors, in particular the new Government, with an unprecedented
coalition of socialist PSOE and left-wing Unidas
Podemos, must play a role. Both of them pushed the appeal before the
Spanish Constitutional Court and, although PSOE went from public opposition to
a defence of push-backs in Strasbourg as the acting Spanish Government, the current majority in
Parliament still supports the repeal of the Citizens Security Law.
Parliamentary fragmentation and political polarization (with a rising far-right party dragging conservatives to more radical positions, including migration and national identity issues) do not excuse the Government from advocating a law amendment and, more importantly, a deep change in border practices.
Protecting fundamental rights and complying with international law at the border cannot wait that long and it is time for the Constitutional Court and Government to keep up with Spain international legal obligations.