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Rabat – On August 13, 2014, Spain witnessed a surge of sub-Saharan immigrants into its borders. Around 600 migrants attempted to cross into the North African enclave of Melilla, with none succeeding. Among them were two, identified as N.D. and N.T. Their story led the European Court of Human Rights to bring action against Spain in court.
Originally from Mali, N.D., 31, arrived to Morocco in March 2013 and resided for about nine months in the makeshift camp on Gurugu Mountain, near the border crossing into Melilla.
N.T., 30, came to Morocco from the Ivory Coast at the end of 2012, staying in the same camp.
August 13, 2014 saw good weather conditions, prompting 600 sub-Saharan migrants to test their chances at the border. N.D. and N.T. left the camp and attempted to enter Spain with a group of sub-Saharan migrants through the Melilla crossing.
Climb Higher for the Eventual Fall
The two managed to climb the first six-meter-high external barrier. While N.T. only managed to cross the first two barriers, N.D. succeeded in scaling up to the top of the third barrier.
While climbing over the borders, N.T. and N.D were brought down by members of Guardia Civil. They were immediately arrested, handcuffed and returned to Morocco, without being identified or questioned. The two were not given the opportunity to explain their personal circumstances or to receive assistance from lawyers, interpreters, or medical personnel.
In utter silence, N.D and N.T were subsequently transferred to the Nador police station, and then to Fez, more than 300 kilometers from Melilla, in the company of 75 to 80 other migrants who had attempted to enter the Spanish city on the same date.
Unlawful Expulsion
While their story, like that of many sub-Saharan immigrants, would normally end there, it did not.
Non-governmental organizations, including Office of the United Nations High Commissioner for Refugees (UNHCR), the UN High Commissioner for Human Rights (UNOHCHR), the Spanish Commission for Assistance to Refugees (CEAR) and, acting collectively, from the Centre for Advice on Individual Rights in Europe (the AIRE Centre), Amnesty International (AI), the European Council on Refugees and Exiles (ECRE),subsequently lodged a complaint that the expulsion has been “unlawful” and called for the opening of an investigation on February, 12, 2015.
The two migrants claimed that they had been subjected to a collective expulsion without an individual assessment of their situation, with no basis in law and without the provision of any legal advice. Videos of the events captured by witnesses and journalists were submitted to the Court by the applicants, as proof Spain’s legal violations.
Following an investigation, the ECHR ruled that the long-standing practice of push-backs at the external borders of the European Union (EU) violates two articles of the European Convention on Human Rights, which prohibit the “collective expulsions of aliens.”
The court observed that it was “undisputed that N.D. and N.T., who were under the exclusive and continuous control of the Spanish authorities, had been expelled and sent back to Morocco against their wishes,” which violated Article 4 of Protocol No. 4.
The two were also deprived of “the right to effective remedy” set up by the convention in Article 13, which states that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Spain Plays the Victim
The Spanish government raised objections to the court’s judgment, saying that “the application was based on events which occurred outside the jurisdiction of Spain.”
Spain claimed that N.D and N.T had not succeeded in crossing the protective structures at the Melilla border, thus Spain could be penalized for the way they were treated.
The Court, however, deemed the government’s response as “irrelevant.” Given that it was the Spanish authority that had exercised power over the two migrants, it was unnecessary to establish whether the two migrants were in Morocco or Spain.
“From the moment that the applicants climbed down from the barriers, they had been under the continuous and exclusive control of the Spanish authorities,” wrote the court.
Spain also claimed that N.D and N.T were unfairly painted as victims. “Neither of the two applicants has submitted a request for international protection to the Spanish authorities before applying to the Court,” the government noted.
The migrants had therefore “lost victim status,” as they had succeeded in entering Spanish territory unlawfully and deportation orders had been issued against them.
The court dismissed Spain’s objections, confirming that the applicants could indeed claim to be victims.
“They had given a coherent account of the circumstances, their countries of origin and the difficulties that had led them to the makeshift camp on Mount Gurugu, and of their participation with other migrants in the attempt to scale the barriers surrounding the Melilla border crossing on 13 August 2014, with the aim of entering Spanish territory,” wrote the court.
The ECHR ruled that, as Spain violated Article 13 of the Convention taken together with Article 4 of Protocol No. 4 to the Convention, it must pay each of the applicants EUR 5,000 “in respect of non-pecuniary damage.”
