Key facts of the case:
24. 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 together with other migrants. According to the Government, the Moroccan police prevented around 500 migrants from scaling the outer fence, but around a hundred migrants nevertheless succeeded. Approximately seventy‑five migrants managed to reach the top of the inner fence, but only a few came down the other side and landed on Spanish soil, where they were met by the members of the Guardia Civil. The others remained sitting on top of the inner fence. The Guardia Civil officials helped them to climb down with the aid of ladders, before escorting them back to Moroccan territory on the other side of the border through the gates between the fences.
25. The first applicant stated that he had managed to reach the top of the inner fence and had remained there until the afternoon. The second applicant said that he had been struck by a stone while he was climbing the outer fence and had fallen, but had subsequently managed to get to the top of the inner fence, where he had remained for eight hours. At around 3 p.m. and 2 p.m. respectively the first and second applicants reportedly climbed down from the fence with the help of Spanish law-enforcement officials who provided them with ladders. As soon as they reached the ground they were allegedly apprehended by Guardia Civil officials who handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities. The applicants alleged that they had not undergone any identification procedure and had had no opportunity to explain their personal circumstances or to be assisted by lawyers or interpreters.
26. The applicants were then reportedly transferred to Nador police station, where they requested medical assistance. Their request was refused. They were allegedly taken subsequently, together with other migrants who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had been returned to Morocco on 13 August 2014.
27. Journalists and other witnesses were at the scene of the attempt to storm the border fences and the subsequent events. They provided video-footage which the applicants submitted to the Court.
C. The applicants' subsequent entry into Spain
28. On 2 December and 23 October 2014 respectively, in the context of further attempts to storm the fences, the first and second applicants succeeded in climbing over the fences and entering Melilla. Two sets of proceedings were instituted against them. The applicants were subsequently issued with expulsion orders.
29. An order for the first applicant’s expulsion was issued on 26 January 2015. He was accommodated in the temporary detention centre for aliens (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.
30. 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.
31. Both applicants were represented by lawyers during these proceedings.
Outcome of the case:
FOR THESE REASONS, THE COURT,
CONCURRING OPINION OF JUDGE PEJCHAL
I am aware that the above assessment of the case represents a totally different and new approach to the consideration of applications brought before the European Court of Human Rights. I believe that I am right in considering that Article 37 of the Convention deserves a far deeper examination by the Court and, especially, an exact interpretation as described above. I am of the opinion that both applications could have been struck out of the list of cases even before the Grand Chamber hearing, on the grounds that it was no longer justified to continue the examination of the applications. The majority did not share this opinion and, therefore, being aware of this fact, I voted with the majority by way of compromise. The approach taken is also a way of resolving the case, albeit, in my view, less effectively. Nonetheless, I considered it important to clarify my point of view, as the reasons why I eventually agreed with the wording of this judgment were somewhat different from those of the majority.
PARTLY DISSENTING OPINION OF JUDGE KOSKELO
43. My main concerns with the present judgment may be summarised as follows:
(i) The unlimited and unqualified interpretation of the scope of Article 4 of Protocol No. 4, whereby that provision is made applicable, without distinction, to any unauthorised crossing by aliens of the external border of a State Party, thus detaching its applicability from any link to the obligation of non-refoulement;
(ii) The articulation, with ensuing supervision by the Court, of positive obligations for the States Parties regarding the provision of “genuine and effective access to means of legal entry” on their external borders for the benefit of aliens aiming to enter the jurisdiction of a State Party;
(iii) The shift in focus from the relatively well-established requirements arising under the obligation of “non-refoulement” to a “carve-out” based on the criterion of “own conduct”, elaborated and circumscribed by a series of novel criteria the application of which on the ground will not be without difficulties;
(iv) The lack of consideration for other vital concerns relating to border surveillance and controls besides those relating to the entry of actual or potential asylum-seekers, as well as the risk of undesirable incentives being created for people smugglers.
44. With the Court’s finding, early on in the procedure, that the applicants’ rights under Article 3 (in terms of the obligation of non refoulement) were manifestly not engaged in the circumstances of the present case, the conclusion should have been that, under those circumstances, Article 4 of Protocol No. 4 was not applicable. I reiterate that this position does not detract from the absolute character of Article 3. The point is that under the Convention, the scope of the obligations arising for the States Parties from that Article in the specific context of measures concerning aliens apprehended or intercepted at the border in the context of an unauthorised entry, or an attempt at such entry, is limited.
45. I therefore voted in favour of points 1 to 5 and point 7 of the operative provisions concerning the preliminary issues, but against point 6 concerning the applicability of Article 4 of Protocol No. 4 in the present case. In my view, the complaints are incompatible ratione materiae with that Article. As the majority found the provision to be applicable, I voted in favour of finding no violation of that Article. The reasons for the latter position echo the reasons why I consider that the provision was not applicable in the first place. I can thus refrain from elaborating further.
177. According to Article 6(b) of the Draft Articles, a State may not expel or return (refouler) a refugee in any manner whatsoever to a State or to the frontiers of territories where the person’s life or freedom would be threatened. In substance, this prohibition is also echoed, inter alia, in Articles 18 and 19 of the Charter of Fundamental Rights of the European Union (see paragraph 42 above), Article 78(1) of the TFEU (see paragraph 43 above), Article 3 of UNCAT (see paragraph 63 above), and Article 3 of the Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (see paragraph 64 above), and also in Guideline 2 of the Guidelines of the Committee of Ministers of the Council of Europe on Forced Return (see paragraph 53 above). 182. Meanwhile, European Union law, to which several of the intervening governments referred, enshrines in primary law the right to asylum and the right to international protection (Article 78 TFEU and Article 18 of the Charter of Fundamental Rights, cited at paragraphs 43 and 42 above), and also the prohibition of collective expulsion and the principle of non-refoulement (Article 19 of the Charter, cited at paragraph 42 above). As regards third-country nationals who are staying illegally on the territory of a member State, the Return Directive (2008/115) sets out the standards and procedures governing their return, “in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations” (Article 1). Furthermore, the Schengen Borders Code stipulates that third-country nationals who do not fulfil all the entry conditions shall be refused entry to the territories of the member States, by means of a substantiated decision, without prejudice to the special provisions concerning the right to asylum and international protection (Articles 13 and 14 of the Schengen Borders Code applicable at the relevant time, corresponding to the new Article 14 and Article 15 of the codified version of Regulation (EU) 2016/399 of 9 March 2016 (the Schengen Borders Code), and Article 2 of Directive 2008/115, cited at paragraphs 45, 46 and 47 above). Moreover, member States may decide not to apply the Return Directive to third-country nationals who are subject to such a refusal of entry, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a member State and who have not subsequently obtained an authorisation or a right to stay in that member State (Article 2(2)(a) of the Return Directive). In such cases, the member States may apply simplified national return procedures, subject to compliance with the conditions laid down in Article 4(4) of the Directive, including the principle of non-refoulement (see the CJEU judgment in the of Affum, cited above, §§ 72-74). 183. Furthermore, under Article 14(4) and (5) of Directive 2011/95 (the Qualification Directive) the principle of non-refoulement, and certain rights enshrined in European Union law on the basis of the Geneva Convention (Articles 3, 4, 16, 22, 31, 32 and 33 of that Convention) are applicable, unlike the other rights enumerated in those two instruments, to any person present in the territory of a member State who fulfils the material conditions to be considered a refugee, even if he or she has not formally obtained refugee status or has had it withdrawn. It appears that the enjoyment of these rights is therefore not conditional on having already obtained refugee status, but derives from the sole fact that the person concerned satisfies the material conditions referred to in Article 1(A)(2) of the Geneva Convention and is present in the territory of a member State (see §§ 84, 85, 90 and 105 of the CJEU judgment in the of M. v. Ministerstvo vnitra and Others, cited at paragraph 51 above). Moreover, under Articles 4 and 19(2) of the Charter, EU law does not permit member States to derogate from the principle of non-refoulement under Article 33(2) of the Geneva Convention (ibid., § 95).