European Court of Human Rights backs Spain in express deportation case

The magistrates ruled that the Spanish government acted lawfully when it returned to Morocco two migrants who had jumped the border fence at the exclave city of Melilla

A group of migrants after crossing the border fence into Melilla last September.
A group of migrants after crossing the border fence into Melilla last September.Antonio Ruiz

The European Court of Human Rights (ECHR) ruled unanimously on Thursday that Spain’s deportation of two sub-Saharan migrants, who jumped the border fence separating Morocco from the Spanish exclave city of Melilla in 2014, with around 70 others, did not violate the European Convention on Human Rights.

In this case, the men, identified by the initials N. D. and N. T., were immediately deported to Morocco instead of being processed first in Spain, a process known as an “express deportation.”

The European court ruled that the express deportation of the two migrants did not violate the convention’s prohibition on collective expulsions or the right to an effective remedy – a reversal of its initial verdict in October 2017 which ordered Spain to pay €5,000 to each of the men for violating their human rights.

The verdict could have a huge impact on the future of Europe’s migration policies

Thursday’s ruling, which followed an appeal by Spain, found that “the applicants had in fact placed themselves in an unlawful situation when they had deliberately attempted to enter Spain on 13 August 2014 by crossing the Melilla border protection structures as part of a large group and at an unauthorized location, taking advantage of the group’s large numbers and using force.”

The sentence was read in the court’s grand chamber by ECHR president, Judge Linos-Alexandre Sicilianos.

In its decision, the 17 magistrates found that N. D. and N. T. had not chosen “to use the legal procedures which existed in order to enter Spanish territory lawfully,” and therefore their arrest by the Civil Guard and immediate removal, before they were able to see a doctor or lawyer, was “a consequence of their own conduct.”

The court recognized that there was a “lack of an individualized procedure for their removal,” but found that this was also a “consequence of the applicants’ own conduct.”

“In the case of N.D. and N.T. against Spain, you have to understand that the applicants entered Spanish territory by force and using the effect of the masses,” Patrick Titiun, the head of the ECHR president’s private office, told journalists after the sentence was announced. “They did not use the legal, regular routes that exist to ask for asylum in Spain. That’s why [...] the court considered that there had not been a violation of the European Convention on Human Rights.”

The former Spanish Prime Minister Mariano Rajoy, of the conservative Popular Party (PP), appealed the ECHR’s initial sentence due to concerns that it would set a precedent and affect Spain’s express deportations, which were legalized in 2015 through an added provision to the controversial Public Safety Law, known commonly as the “gag law.”

The ECHR agreed to hear the appeal on the condition that it consider more generally the application and interpretation of the human rights convention and its protocols. Indeed, the governments of France, Italy and Belgium ended up joining Spain’s appeal, indicating that the verdict could have a huge impact on the future of Europe’s migration policies.

Paradoxically, when it came to defend Spain’s official position before the ECHR in September 2018, the Spanish government was being led by Pedro Sánchez, of the Socialist Party (PSOE) which opposes express deportations. Although the PSOE considers the practice unconstitutional, it decided to continue with the appeal and await the court’s final verdict before deciding whether to modify or ban express deportations. Titium told EL PAÍS in Strasbourg, the headquarters of the ECHR, that it is up to the Spanish government to decide how to interpret the ruling. “If [the judges] had decided that there was a violation, that would have had different consequences,” he said. “But in regards to this case, there has not been a violation of the convention.”

Constitutional Court to allow express deportations

Spain’s Constitutional Court will alter the provisional changes being considered to the Public Security Law and accept express deportations to adapt Spanish legislation to the ECHR ruling, which had been banned by the initial text. The Constitutional Court had halted deliberation on the controversial law until the ECHR reached a verdict on the case.