What American President Trump is wishing for, Europe already has: a wall. In this case, a high fence measuring three to six metres surrounding the Spanish exclave Melilla, fencing it off from Morocco and from many desperate people trying to reach Europe. The pictures of Melilla’s fences are symbolic for the European way of handling irregular migration.
Similarly, the recent judgement in N.D. and N.T. v. Spain by the European Court for Human Rights (ECtHR) is exemplary of the disregard for human rights by European states when it comes to border protection. Disregard because Spain should have known its actions were in violation of the European Convention of Human Rights (ECHR) since an ad hoc report by the European Committee for the Prevention of Torture (CPT) in 2014 found Spain’s actions to constitute refoulement. In the same year the plaintiffs N.D. and N.T. climbed over the fences to Melilla and were immediately returned to Morocco.
Relying on the ECtHR’s case law, the CPT laid down in its report that it is contrary to Art. 3 ECHR to return a person to a country where he or she is at risk of torture or other ill-treatment (refoulement). To prevent this, a State should conduct asylum procedures. It then referred to reports of migrants being forcibly returned to Morocco without even an identification procedure. The CPT found these events, which are very similar to what happened to N.D. and N.T., to be in clear violation of the Convention.
This part of the report is included by the ECtHR in its judgement among the facts to the case. While the applicants also claim a violation under Art. 3 ECHR, the Court only considers whether there is a violation of the prohibition of collective expulsion (Art. 4 of Protocol No. 4) and of the right to an effective remedy (Art. 13 ECHR). Notably, Spain does not contest that the alleged returns took place – a practice not only mentioned in the CPT report but also well documented by other organisations. It does however challenge the application of Art. 4 of Protocol No. 4 on numerous other grounds such as jurisdiction and the applicants not forming a group in the sense of collective expulsion. The Court agrees with none of those arguments. Instead, it finds a violation of Art. 4 of Protocol No. 4 as no administrative or judicial decision was taken prior to the return. The decisive factors – lack of identification and asylum procedures – were the same as for the CPT in its report to find a violation of the Convention. Thus, the judgement came as no surprise.
While Spain still has the chance to challenge the unanimous Chamber judgement in front of the Grand Chamber, the question arises whether Spain will change its current practice whatever the outcome. As part of the principle of co-operation, the CPT expects Member States to improve situations if it finds a violation. But nothing has fundamentally changed for migrants from sub-Saharan Africa in Melilla since 2014. Amnesty International recorded collective expulsions also in 2015 and 2016. Will the N.D. and N.T. judgement really be the game changer?