TrustHLT/LaCour huggingface dataset:
TP1 (ThirdParty): of the Council of Europe as it deals with pushback practices or return arrangements at a land border. UNHCR recognises of course the sovereign right of states to establish
TP1 (ThirdParty): their own immigration policies provided they are in compliance with their treaty obligations, including those arising from the 1951 Convention and the European Convention on Human Rights.
TP1 (ThirdParty): As this Court has repeatedly indicated, problems and new challenges facing European states in terms of migration cannot justify practices incompatible with the standards set out in the European Convention on Human Rights.
TP1 (ThirdParty): This submission will expand and elaborate upon UNHCR's key positions reflected in our written interventions regarding, firstly, the situation at the CETA and Melilla enclaves, in particular the lack of access for asylum applicants from sub-Saharan Africa to any identification procedures enabling an individual assessment of their situation in the context of summary returns, and secondly, the scope and content of the prohibition of collective expulsion and its implications regarding non-refoulement under international refugee and human rights law.
TP1 (ThirdParty): Allow me first briefly to describe the situation in Melilla and CETA on the basis of UNHCR's observations. UNHCR was asked by the Court by way of letter dated 16 August 2018 whether
TP1 (ThirdParty): and I quote, the applicants at the time of the events had a real possibility to access the border checkpoint of Beni Ensar and request asylum there, end quote.
TP1 (ThirdParty): As a third party intervener, UNHCR does not pronounce itself on the claims of the individual applicants. However, as outlined in our written interventions, UNHCR reiterates that at the
TP1 (ThirdParty): material time of the incidents at issue in the present case and up to November 2014, when authorised asylum border posts were created by the Spanish authorities, there was no mechanism in place for persons seeking international protection, either at Beni Ensar, the main Melilla-Morocco border crossing point, or anywhere else, to safely access the territory of Spain in order to apply for asylum.
TP1 (ThirdParty): Furthermore, prior to that date, the procedural guarantees provided for in the national law, which include individual identification, access to a lawyer and an interpreter in cases of the return of foreigners who attempt to enter Spain through an unauthorised border crossing, provided for in the 2009 Aliens Act and its regulations, had not been properly implemented at Melilla and Ceuta, resulting in summary returns or pushbacks in breach of the aforementioned procedural guarantees.
TP1 (ThirdParty): The Court further asked UNHCR, and I quote, if at the time of the events, i.e. prior to
TP1 (ThirdParty): the 1st of September 2014, what were the reasons for the alleged impossibility or difficulties referred to by some of the third parties, the Human Rights Commissioner, UNHCR or CEAR, for persons from sub-Saharan Africa to access the Spanish Embassy in Rabat or the Spanish Consulate in Nador, end quote.
TP1 (ThirdParty): In response to this question, UNHCR wishes to inform the Court that notwithstanding Article 38 of the Spanish Asylum Law, promulgated in October 2009, which grants the Ambassador of Spain discretion to allow persons whose physical integrity is at risk or are in need of international protection to be transferred to Spain to apply for such, no procedure for seeking international protection in a Spanish Consulate or Embassy has been established or applied for, except for family reunification purposes with recognised refugees in Spain.
TP1 (ThirdParty): UNHCR has expressed concerns that despite the amendments to the Aliens Act, which came into force on 1st of April 2015, after the incidents at issue in the present case, the newly introduced concept of rejection at the border at Melilla and Ceuta are not carried out in compliance with international refugee law and European human rights standards, because the duty to ensure a reasonable and objective examination of the particular case of each individual alien has not been fully implemented in practice.
TP1 (ThirdParty): We have commented further on this as set out in our written submission at PARA 222 and supplementary observations at PARA 213.
TP1 (ThirdParty): The failure to have this reasonable and objective examination may, in certain circumstances, lead to the violation of the obligation of non-refoulement under international refugee and human rights law.
TP1 (ThirdParty): UNHCR is further concerned that access to the territory and a fair and efficient asylum procedure, including where relevant an admissibility procedure at the Melilla border crossing, is in practice only available to persons from Middle East and North African countries.
TP1 (ThirdParty): Access is virtually impossible for Sub-Saharan Africans who are prevented from approaching the border area.
TP1 (ThirdParty): Statistics from the Spanish authorities indicate that 12,700 asylum seekers from Middle Eastern and North African countries have been registered by the Spanish authorities at the Benin-Zaar border post since the end of 2014.
TP1 (ThirdParty): In contrast, approximately only 35 asylum seekers from Sub-Saharan African countries were registered during the same period, and only because they managed to enter the enclave not through the Benin-Zaar border, but by other means.
TP1 (ThirdParty): UNHCR observes further that to date, not a single person of any nationality has been able to claim asylum at El Tarajal, the main border crossing between Ceuta and Morocco.
TP1 (ThirdParty): Since the entry into force of the amendment to the Aliens Act on 1 April 2015, summary returns or pushbacks at the Melilla and Ceuta land borders continue to be reported on a regular basis.
TP1 (ThirdParty): UNHCR estimates that 1,500 persons were summarily returned by the Spanish border authorities, the Guardia Civil, without any proper individual identification procedure in several incidents in Ceuta and Melilla since that date.
TP1 (ThirdParty): Mr. President, distinguished judges, allow me now to elaborate briefly on the scope and
TP1 (ThirdParty): the content of the prohibition of collective expulsions to show why the situation at the Melilla and Ceuta enclaves remains problematic to us.
TP1 (ThirdParty): As the learned members of this court have stated, the purpose of Article 4 of Protocol 4 is to prevent states being able to remove certain aliens without examining their personal circumstances and consequently without enabling them to put forward their arguments against the measure.
TP1 (ThirdParty): In Hersey and others and Italy, the court found that the pushback of the applicants by the Italian authorities to Libya were carried out without any form of examination of each applicant's individual situation and that the Italian authorities did not carry out any identification procedures.
TP1 (ThirdParty): Moreover, the court noted that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisors.
TP1 (ThirdParty): The court has gone on to find that collective expulsion is to be understood as any measure compelling aliens as a group to leave a country except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.
TP1 (ThirdParty): The prohibition of collective expulsion therefore involves the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned are actually the subject of a detailed examination.
TP1 (ThirdParty): While these guarantees may vary depending on the circumstances of the case, in its Califia judgment the court noted in particular the registration of the identity and the nationality of the individuals as an important indicator of the existence of an identification procedure in determining compliance with Article 4, Protocol 4.
TP1 (ThirdParty): In this connection, the court recalled that each alien should have a genuine and effective possibility of submitting arguments against his or her expulsion and to have those arguments examined in an appropriate manner by the authorities of the respondent state.
TP1 (ThirdParty): The court further underlined that in an expulsion procedure, the possibility of lodging an asylum application is a paramount safeguard.
TP1 (ThirdParty): In UNHCR's view, the procedural guarantees protecting the persons concerned against collective expulsion are therefore essential also to prevent possible violations of the non-refoulement obligation under the 1951 Convention.
TP1 (ThirdParty): Indeed the prohibition of refoulement is engaged whenever there is conduct, for instance during border checks, pushbacks or forced removals, exposing an individual to a risk of being subject to persecution or ill-treatment in another country if the person has expressed a fear of such or the individual circumstances or characteristics of the applicant or group indicates a risk of refoulement of which the state ought to be aware.
TP1 (ThirdParty): The procedural guarantees ensuring compliance with Article 4, Protocol 4 contribute to the respect of the non-refoulement obligation under international refugee law.
TP1 (ThirdParty): Indeed, without a genuine and effective possibility for persons concerned to submit arguments against their expulsion and of having those arguments examined in an appropriate manner by adequately trained authorities, their potential need for international protection would not necessarily be identified.
TP1 (ThirdParty): In conclusion, Mr. President, distinguished judges, UNHCR considers that Spain's practice
TP1 (ThirdParty): of rejection at the border in this context and pushing back persons who may be in need of international protection without a proper identification procedure and without taking into account the circumstances, rights and needs of each individual is at variance with the prohibition of collective expulsion and may lead to a violation of non-refoulement.
TP1 (ThirdParty): I thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much Mrs. O’hara.
Guido Raimondi (JudgeP): And I thank the parties and the third party intervenors for their submissions before the court.
Guido Raimondi (JudgeP): Now I invite my colleagues, the members of the Grand Chamber, who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): So Judge Kucsko-Stadlmayer, please.
Gabriele Kucsko-Stadlmayer (Judge): My first questions go to the representatives of the applicants.
Gabriele Kucsko-Stadlmayer (Judge): Mr. Gericke, you read out a statement of the first applicant, Mr. Nd, and my question is are you still in contact with both applicants, and do both of them tell you that they want to pursue their applications?
Gabriele Kucsko-Stadlmayer (Judge): The second question concerns the events of 13 August 2014.
Gabriele Kucsko-Stadlmayer (Judge): You say that the applicants were not given the slightest possibility to raise any arguments against their expulsion, but you also say that the legal issue of this case is not asylum.
Gabriele Kucsko-Stadlmayer (Judge): What would have been the applicants' arguments against their removal?
Gabriele Kucsko-Stadlmayer (Judge): Now my next questions go to the government, and the first question concerns Article 38 of the Asylum Law of 2009.
Gabriele Kucsko-Stadlmayer (Judge): It was mentioned today.
Gabriele Kucsko-Stadlmayer (Judge): It grants the ambassador of Spain the competence to allow people who are in need of international protection their transfer to Spain.
Gabriele Kucsko-Stadlmayer (Judge): Now AIDA, the Asylum Information Database, writes that this provision lacked implementation, and this was repeated by the representative of the UNHCR.
Gabriele Kucsko-Stadlmayer (Judge): But did I understand you correctly today when you mentioned the Royal Decree of 1995, that this decree was still in force and is still in force even after the adoption of this law?
Gabriele Kucsko-Stadlmayer (Judge): I would be interested in an answer to this.
Gabriele Kucsko-Stadlmayer (Judge): And finally, as to the Benin-Ansar border post, it has been said several times even today that there were difficulties for sub-Saharan asylum seekers, sub-Saharan people, to reach this post, not only before 1 September 2014, but even afterwards.
Gabriele Kucsko-Stadlmayer (Judge): Do you have an explanation for this, and do you have any evidence for these alleged facts?
Gabriele Kucsko-Stadlmayer (Judge): And finally, may I add also a question to the representative of the UNHCR, Mrs. O’hara.
Gabriele Kucsko-Stadlmayer (Judge): You mentioned today and also in your written statement that until November 2014 there was, I quote, no mechanism in place for persons seeking international protection at the Benin-Ansar border post or anywhere else at the Spanish border.
Gabriele Kucsko-Stadlmayer (Judge): But the Spanish government states and has submitted to us evidence that the building of the Special International Protection Unit at this border crossing only facilitated the lodging of asylum claims.
Gabriele Kucsko-Stadlmayer (Judge): And they have submitted concrete figures which shows that there have been asylum claims even before 1 September 2014.
Gabriele Kucsko-Stadlmayer (Judge): Now how do you comment on these concrete figures?
Gabriele Kucsko-Stadlmayer (Judge): Thank you very much.
Guido Raimondi (JudgeP): Judge Bošnjak, please.
Marko Bošnjak (Judge): I would have two questions, both addressed to the representatives of the applicants, but of course the other participants are invited to comment if they so wish.
Marko Bošnjak (Judge): My first question is very similar to the second question that was addressed by my colleague Judge Kucsko-Stadlmayer.
Marko Bošnjak (Judge): Namely, I heard one of the representatives of the applicants saying that, I quote, this case is about the right to raise arguments before expulsion or against expulsion.
Marko Bošnjak (Judge): And it was underlined that this would be any legal argument, not only an asylum claim.
Marko Bošnjak (Judge): Now I wonder what would, what were actually the intentions of the applicants, what would be the arguments that they wanted to raise in the particular situation, but they were prevented to do so because they were removed from the territory of Spain at this particular occasion.
Marko Bošnjak (Judge): My second question refers to the arguments that were raised actually by the Spanish government.
Marko Bošnjak (Judge): The Spanish government, they say that the applicants lack victim status because they haven't proved that they actually participated in the events of the 13th of August, 2014.
Marko Bošnjak (Judge): The government say that no photographs were submitted by the applicants in the present situation, that no alternative expert report was submitted by the applicants or their representatives, and that the account of events as submitted by the applicants is not credible.
Marko Bošnjak (Judge): They refer to the injuries, broken leg of ND, and also injuries that supposedly the second applicant has suffered during the events in question.
Marko Bošnjak (Judge): Now I wonder what is your reply, I turn here to the applicants, what is your exactly reply to those assertions by the government?
Guido Raimondi (JudgeP): Judge Pejchal, please.
Aleš Pejchal (Judge): I have the same question for both parties, for government and representative of applicants.
Aleš Pejchal (Judge): Can you establish where both applicants, and D and T are now, and how long time?
Aleš Pejchal (Judge): And if you can, can you offer us some relevant, serious proof, evidence about it?
Guido Raimondi (JudgeP): Thank you very much. Now, Judge Elósegui, please.
María Elósegui (Judge): I have some questions related to facts for both parties.
María Elósegui (Judge): First, for the representative of the applicants, concerning Indy, what is the exact year when he left Mali, going to Mauritania, 2011 or 2012?
María Elósegui (Judge): And also, why did he never try to ask asylum in any of the consulates or embassies between 2011 and 2014 before his first jumping into the fence?
María Elósegui (Judge): And also, I'm interested in which was the reasons later on when he was already in Spain in a second jump that he asked asylum, and he was denied twice for the Office of the United Nations for High Commission for Refugees, which one were the reasons, legal reasons?
María Elósegui (Judge): And in relation with Indy, in the facts, the applicant said that he escaped from Ivory Coast in 2012 because he was at risk.
María Elósegui (Judge): Was there a conflict?
María Elósegui (Judge): Then later on, when he has arrived to Melilla in the second jump and to Spain in the mainland in October 2014, why has he never asked asylum in Spain?
María Elósegui (Judge): Well, and in both cases, why did he never try to enter Spain for the official entrances or without visa of work?
María Elósegui (Judge): Well, my last question for the representative of the applicants, did they present in some moment in all this process, in the administrative process in Spain, some official documents of identity, like passport, identity cards, records of births, or anything to demonstrate who they were or their country of origin?
María Elósegui (Judge): And now my questions for the government.
María Elósegui (Judge): According to the government, the identification of the persons asking asylum must be conducted at the official border crossing or in the Spanish embassies and consulates, we have heard, and it is in the report.
María Elósegui (Judge): Then could you explain, given the facts of the real possibilities for a real refugee to access to these means?
María Elósegui (Judge): And very concrete, in the exposition, you have said that after, in September 2014, was created the Bureau of Venezuela and Saar, but before it was also possible to ask for asylum.
María Elósegui (Judge): Could you give us some data, these persons' numbers, that they were brought when they jumped and they are the success?
María Elósegui (Judge): They are brought to the police station, because I suppose that there are also numbers.
María Elósegui (Judge): And also, I will thank some data about the numbers of persons who tried to jump the Melilla fence.
María Elósegui (Judge): And especially, it's interesting, if they have some features in common.
María Elósegui (Judge): I want to say, are they from the same country?
María Elósegui (Judge): They are a collective, or they are some characteristic, like they have the same race or ethnicity, or they come from the same countries in war?
María Elósegui (Judge): What is your data?
María Elósegui (Judge): And well, thank you very much.
Guido Raimondi (JudgeP): Thank you very much. Judge Karakaş please.
Işıl Karakaş (Judge): Ma première question, c'est pour le gouvernement, plutôt.
Işıl Karakaş (Judge): Je me demande si la 10e disposition additionnelle insérée par la loi organique du 4 mars 2015, qui instaure un régime spécial pour Ceuta et Mérida, et qui prévoit aussi la possibilité de refoulement, je dirais que, est-ce que cette disposition a été appliquée conformément aux droits internationaux et aussi à la jurisprudence de Strasbourg?
Işıl Karakaş (Judge): Et ma deuxième question concerne plutôt les deux parties, aussi les tiers intervenants, s'ils le veulent, bien sûr.
Işıl Karakaş (Judge): Donc, c'est intéressant dans le dossier que d'après les ONG et les tiers intervenants, le poste frontière de Béné Enzar n'est pas accessible aux migrants sapsaériens se trouvant aux côtés marocains.
Işıl Karakaş (Judge): Donc, est-ce que vous connaissez les raisons de cette affirmation ou de cette pratique, je dirais?
Işıl Karakaş (Judge): Et quelle est la situation aujourd'hui au poste Béné Enzar?
Guido Raimondi (JudgeP): Ah, okay.
Guido Raimondi (JudgeP): No, you are first.
Guido Raimondi (JudgeP): I'm getting...
Angelika Nußberger (Judge): Thank you very much. I would just have one question to the applicants.
Angelika Nußberger (Judge): I understand that you do not claim that Spain did not have a right to build a fence at the border.
Angelika Nußberger (Judge): The fence that was built was, as I understand, meant to be unsurmountable.
Angelika Nußberger (Judge): Obviously, it was unsurmountable for women, for children, for old people.
Angelika Nußberger (Judge): There were only young men able to climb over the fence, and that's the starting point of your complaint.
Angelika Nußberger (Judge): So my question is, in your view, under international law, would it be possible or allowed for Spain to build now a really unsurmountable fence, even not surmountable by young men?
Guido Raimondi (JudgeP): Thank you very much. Judge Harutyunyan, please.
Armen Harutyunyan (Judge): Thank you very much.
Armen Harutyunyan (Judge): First, my question is for representative of UNHCR.
Armen Harutyunyan (Judge): So you have many representatives and offices in Africa.
Armen Harutyunyan (Judge): Have you ever came across information or fact that there are really organized groups which are taking money and directing people to cross the border of European or given country?
Armen Harutyunyan (Judge): This is a first question.
Armen Harutyunyan (Judge): And the second question for representatives of government, but of course, applicants are representatives if they would like, if they wish, they can comment that as well.
Armen Harutyunyan (Judge): Do you, whether there was a violation during the crossing the border?
Armen Harutyunyan (Judge): And if yes, do you have any data or number of guardians civil who suffered for that?
Guido Raimondi (JudgeP): M. le juge Sicilianos
Linos-Alexandre Sicilianos (Judge): Je voudrais, moi aussi, poser une question principalement à la représentante du DHR.
Linos-Alexandre Sicilianos (Judge): Mais bien sûr, si les partis voudraient commenter, ce serait bien.
Linos-Alexandre Sicilianos (Judge): Vous êtes au courant, madame, que dans l'affaire Claifia contre l'Italie, la Grande chambre s'est référée au projet d'article de la Commission du droit international des Nations unies sur l'expulsion des étrangers.
Linos-Alexandre Sicilianos (Judge): Et que dans l'article 2 de ce projet, il y a une définition de la notion d'expulsion.
Linos-Alexandre Sicilianos (Judge): Et dans cette définition, la Commission du droit international exclut l'extradition, ça, c'est clair, mais elle exclut également la non-admission, terme qu'elle préfère à la notion de refoulement.
Linos-Alexandre Sicilianos (Judge): Donc la non-admission est exclue du champ d'application des articles de la CDI sur l'expulsion des étrangers.
Linos-Alexandre Sicilianos (Judge): Et puis après, dans la disposition qui concerne l'expulsion collective, la Commission du droit international se réfère à la définition de la notion générique d'expulsion, ce qui signifie que, d'après la lecture de ce projet, de la notion d'expulsion collective est exclue la non-admission d'étrangers.
Linos-Alexandre Sicilianos (Judge): En même temps, on voit que dans le commentaire de la définition, il est dit que cette portée restrictive de la notion d'expulsion est sans préjudice, je cite, des règles du droit international relatives aux réfugiés.
Linos-Alexandre Sicilianos (Judge): Et ma question est la suivante.
Linos-Alexandre Sicilianos (Judge): Comment est-ce que vous voyez l'articulation entre la définition restrictive de la notion d'expulsion qui exclut la non-admission d'une part et le droit des réfugiés, notamment le principe de non-réfoulement d'autre part?
Linos-Alexandre Sicilianos (Judge): Articulation entre les deux.
Guido Raimondi (JudgeP): M. le juge Potocki.
André Potocki (Judge): Manifestement, au cœur de nos débats se trouve la relation entre le droit à demander l'asile et l'interdiction posée par l'article 4 du protocole 4 des expulsions collectives.
André Potocki (Judge): Mais cette discussion de principe est parfois un peu obscurcie par des circonstances particulières de l'affaire et notamment les discussions sur le point de savoir s'il existait ou non des possibilités effectives de demander l'asile dans ces enclaves.