In an unprecedented ruling the European Court of Human Rights gave green light to push-backs at European borders. In its ruling on February 13, the ECHR ruled that Spain committed no violation when it expelled migrants trying to force their way onto EU territory by scaling fences in a North African enclave, Melilla, back in 2014.
Two migrants, one from Mali and the other from Ivory Coast, had approached the court after they sought to cross into Europe with a large group in the Spanish enclave of Melilla, which is surrounded by Moroccan territory.
The two plaintiffs, N.D.* and N.T.* were handcuffed and immediately expelled through Melilla’s fence structure from Spain to Morocco. No one asked who they were or why they were there. They were given no due process, nor the opportunity to challenge their expulsion. The same happened to at least 70 other individuals on August 13, 2014, reports the European Center for Constitutional and Human Rights (ECCHR).
“These summary, violent and unlawful push-backs are documented in several videos, photos and testimonies. Yet, in today’s judgment, the Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg dismissed ND and NT v. Spain,” the ECCHR stresses, describing the ruling as “shameless.”
According to euractive, the ruling on Thursday reversed an earlier decision by the court. In an initial ruling in 2017, the court had held that Spain had violated a European protocol on the prohibition of collective expulsion, as well as the migrants’ right to an effective remedy. Spain challenged these findings in the court’s Grand Chamber, a sort of appeals tribunal.
On Thursday, the chamber ruled that Spanish law had afforded the migrants “several possible means of seeking admission to the national territory”.
The judgement said the migrants had placed themselves in an “unlawful situation” by not seeking refuge through the correct channels, which meant Spain could not be expected to offer them any protection
The migrants could have applied for visas or sought asylum at the border.
The ruling was denounced by human rights groups.
“Today’s judgement is very disappointing,’ said Amnesty international spokeswoman Anna Shea.
“These two men were marched back to Morocco as soon as they entered Spain, with no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.
“That the court has today decided that Spain was within its rights to do this, because the men entered the country irregularly, is truly a blow for refugees and migrant rights,” she added.
In an analysis of the judgement, the Network of Migration Research by German scientists said “Unlawful may not mean rightless,” stressing that the court decision is “shocking.”
A Court without Credibility
This judgment is a shock. What is shocking is much more than the finding that no violation of Article 4 of Protocol No. 4 has occurred, although this finding is wrong. The court draws on a language of “unlawfulness” that serves, from Canberra to Washington DC, as a tool for depriving persons of rights. The judgement is a significant setback in the jurisprudence of the Court. This judgment can hardly be read other than the Court making enormous concessions to the pressure by European states, which since the summer of 2015 in the majority pursue a policy of expanding the externalization of migration control and carrying out ever more repressive forms of push-backs at their land borders (e.g. Greece, Hungary and Croatia). A majority of the judges may have thought that the Court could lose support among the convention states, if the judgment in the case of N.D. and N.T. became a human-rights based correction of the EU border regime. Yet with this judgment, in turn, the Court lost credibility as an effective defender of human rights in times of crisis. When we allow unlawfulness to justify rightlessness, the European project is in severe danger. (by Verfassungsblog via Fluchtforschungsblog)
Harsh criticism came from the European Human Rights Commissioner Dunja Mijatovic, who told the court that applying for asylum in Melilla through regular channels or reaching the official border post “seems practically impossible for Sub-Saharan Africans.”
Summary expulsions of migrants and potential asylum seekers were increasing across Europe, Mijatovic warned.
PS Massive push-backs with the blessing of Justice? These are dangerous developments.
