TrustHLT/LaCour huggingface dataset:
GR1 (Government): So we must cite paragraph 253 of the CLAIFIA and others versus Italy, where it is said that if the lodgers are unable to indicate the slightest factor or legal ground which, under international or national law, could have justified their client's presence on the member state territory and preclude their removal, then an individual interview is useless.
GR1 (Government): This apart from the fact that the applicants' lodgers have not proved to have any contact with the applicants from the outset of their proceedings.
GR1 (Government): Mr. Bollier, in the internal proceedings in December 2014, posts a player where, while
GR1 (Government): trying to defend Mr. NT, he refers to another person of different nationality and different
GR1 (Government): name.
GR1 (Government): They have not given even the address of the persons.
GR1 (Government): They have not proved any contact with the persons, and we must refer to the Great Chamber judgment in BM and others versus Belgium, which is referred to in the questions posed by the Grand Chamber.
GR1 (Government): Third, lack of association of available and effective internal remedies.
GR1 (Government): We must say that this is an important part of the functioning of the conventional system.
GR1 (Government): Borders, factual or legal, are not an obstacle per se to the exhaustion of domestic remedies, and applicants living outside the jurisdiction of a contracting state are not exempted from exhausting them, as it has said the Grand Chamber in Demopoulos and others versus Turkey, paragraphs 98 and 101.
GR1 (Government): So the government burden is to prove that there are remedies, and once we prove that effective and available, then the applicant has to show that has exhausted them, and the mere doubts on effectiveness are not absolved from this obligation.
GR1 (Government): And in particular with Article 4 of Protocol 4, in the Glaifia judgment, par. 240, the
GR1 (Government): court has said that there is no violation of Article 4 of Protocol 4 where the lack of individual aspiration decision can be attributable to the culpable conduct of the person concerned.
GR1 (Government): And in Hirshihama judgment, versus Italy, paragraph 177, it is said that, unlike what happens with people coming from the sea, when they come by land, they may be able to pose that kind of remedies.
GR1 (Government): Spain has only to prove that there was one remedy available, but Spain has proved that it is not only one, but three remedies which are available.
GR1 (Government): First of all, requesting an entry visa from the country of origin of any country.
GR1 (Government): Nobody has ever proved or pled that this is not possible according to European Union and national law.
GR1 (Government): What would any of the people seated in this hall do if they wanted to go to Mali or to Ivory Coast?
GR1 (Government): They would seek that kind of visas and not unlawfully try to trespass the border.
GR1 (Government): In fact, we have not only that legislation, but bilateral treaties for working visas with Mali and quotas with Ivory Coast.
GR1 (Government): And we have proved by statistics that in the relevant period, 34 Malians and 34 nationals of Ivory Coast entered into Spain through this kind of visa.
GR1 (Government): But on top of that, in 2013, 1,597 people requested a visa from Ivory Coast and 776 people requested a visa for entry from Mali.
GR1 (Government): Similar figures are for 2014, and we have furnished the court and the other parties today with the data.
GR1 (Government): Second, requesting entry at the Spanish consulates or embassies.
GR1 (Government): What I trust about this is the Spanish official gazette and the law and regulation existing.
GR1 (Government): Article 38 of the Law on Asylum of 2009 establishes clearly that it is possible to request asylum at embassies and consulates.
GR1 (Government): And the regulation of 1995 is applicable until a new regulation is adopted.
GR1 (Government): So we have to look at the articles, which are 416 and 29.4 of Royal Decree of 1995,
GR1 (Government): together with the circular to embassies and consulates that we have furnished the court with, to apply these articles.
GR1 (Government): And according to this legislation, it is possible to file these in consulates and embassies.
GR1 (Government): If there is urgency, which can be appreciated by the Spanish officer of the United Nations High Commissioner of the Refugee, which can make a request to Spain, or by the ambassador having the person in presence, then there is transfer to Spain, immediate transfer to Spain, given the travel documents needed.
GR1 (Government): And if there are no urgent cases, then the ambassador will evaluate the danger and will make interviews, and if he considers that there is seriousness in the application, will refer to the Interministerial Commission for Asylum and Refuge, which has to deliver a decision in six months' time, and that decision can be subject to judicial review.
GR1 (Government): So it is real, the existence of this possibility in the law and regulations.
GR1 (Government): And in the period of 2014-2018, 1,308 were granted, nine in Morocco, four in 2014.
GR1 (Government): Requesting asylum, 30, at authorized border crossings of Benin and Sar.
GR1 (Government): This is possible according to Spanish and European law.
GR1 (Government): Before the 13th of August 2014, the persons who wanted to seek asylum were accompanied to the religious police station, and we have furnished the data before 13th August 2014, which is 21 requested in police stations, and six came from the border crossing.
GR1 (Government): So it was possible, and two of them came from Ivory Coast.
GR1 (Government): To discredit this, it is said that the number of sub-Saharans is very small, due to unidentified sources that say that someone prevents sub-Saharans to reach the border post.
GR1 (Government): But this is, to apart the view from the most plausible explanation, which is that this is economic migration, and this is why they do not bear legal grounds for refuge, and then they don't request asylum.
GR1 (Government): Economic migration is understandable, and it raises most humanitarian concerns.
GR1 (Government): But this calls for an orderly management of migration flows, and this follows from the global compact on safe, orderly, and regular migration, which is going to be submitted to final consideration by the General Assembly of the United Nations this December.
GR1 (Government): It is not unlawful trespassing of the borders the solution for this.
GR1 (Government): And secondly, who would be to blame?
GR1 (Government): The SEAR submission as third party has been clear.
GR1 (Government): It says, quote, since the Moroccan authorities prevent these people from accessing Benin's SEAR office, we don't know if this is real or not, but the SEAR blames the Moroccan authorities, and Spain is not to blame for Moroccan activities.
GR1 (Government): And even Mr. Boye today has said that it is the Moroccan authorities that presumably impede
GR1 (Government): these people to arriving to the Benin-Saharan border.
GR1 (Government): We doubt it, because in the official data we have furnished, there are people from sub-Saharan countries that is coming.
GR1 (Government): On jurisdiction, we won't make any further point.
GR1 (Government): It is already said in our written submissions, but we only want, also in the submission of the Belgian, Italian, and French government, only we want to put to the consideration of the court that according to the position of the applicants, just standing on Spanish territory and touching the first wall, full jurisdiction will be established.
GR1 (Government): We don't consider that this is reasonable.
GR1 (Government): And we will go to the late point, the latest point, which is the inexistence of violation of Article 4, Protocol 4, and of Article 13 in relation to this.
GR1 (Government): I will give a lightning example.
GR1 (Government): Suppose you are at home with your couple of children, you are caring, supportive, and humanitarian.
GR1 (Government): You would give entry to any person in danger or in need to your home just if they knock at the door and explain the reasons.
GR1 (Government): And suddenly you see 600 strong men come in menacing to break your windows.
GR1 (Government): And then your reaction is to close the windows and to secure shutters and blinds.
GR1 (Government): So refraining from the use of weapons and still keeping the door open through normal means.
GR1 (Government): So are you preventing entry to your house or are you espousing people?
GR1 (Government): Who is being violent and unlawful?
GR1 (Government): Who has not been willing to comply with reasonable requirements of entry and who has not?
GR1 (Government): So if we go to the legal question which is behind this tale, expulsion.
GR1 (Government): In the explanatory memorandum of the Convention, expulsion was devised to avoid the shameful crimes which happened in Europe in the 19th century and in part of the 20th century.
GR1 (Government): So it was devised for persons who were in the territory of the state in issue.
GR1 (Government): This was the initial drafting of the article.
GR1 (Government): You have recognized that in your judgment of His Ijamaa, paragraph 167.
GR1 (Government): Then you made the first expansion of this subjective and objective scope of article 4 or protocol 4 in His Ijamaa.
GR1 (Government): In that case, you were before persons in danger in the country of provenance.
GR1 (Government): So article 3 was taken in connection with article 4, protocol 4.
GR1 (Government): And the persons were in international waters and there was an obligation to let them in by the international law of the sea.
GR1 (Government): And they came inside the territory of the Italian state through an Italian sea.
GR1 (Government): So in fact, this is a case where the persons were inside the territory of the state.
GR1 (Government): The same happens in Claifia and others versus Italy and in Sarifi versus Austria.
GR1 (Government): People had entered in the territory and then you examine whether the expansion proceedings comply or not with the Convention.
GR1 (Government): But here we are confronted with a possible second expansion anew of article 4 or protocol 4.
GR1 (Government): Because...
Guido Raimondi (JudgeP): Excuse me, Mr. Leon, can I ask you to conclude, please?
GR1 (Government): These persons come by land and could request lawful entry.
GR1 (Government): These persons do not bear legal grounds to request refuge, so no reform in this applicable.
GR1 (Government): They come from a secure third country, Morocco, where they could lawfully request asylum.
GR1 (Government): They willfully perform an act of massive violent and lawful trespassing, and they are prevented from entry by the use of proportionate obstacle.
GR1 (Government): Is this in conformity with international law?
GR1 (Government): First of all, there is no legal right to enter in a state from outside.
GR1 (Government): You have said that in Neda versus Switzerland.
GR1 (Government): Second, Spain has the international obligation to prevent an authorized entry to its territory, which is Sengen territory, according to a treaty on the function of the European Union and the Sengen border code.
GR1 (Government): Thirdly, attacks are acts against the principles of the United Nations, Article 51 of the UN Charter.
GR1 (Government): And Article 2 of the draft articles on the sparsing of aliens say that the non-admission of an alien to the state is not included in the concept of sparsing.
GR1 (Government): And in fact, to avoid fragmentation of human right protection, you might take into account that relevant member states have not ratified so far Protocol 4, such as Greece, Turkey, UK, and Switzerland, that the comments made by the relevant European states and other states within the Sixth Commission regarding the negotiation of the draft articles are clear in the sense that regarding border control, there can be no sparsing under international law.
GR1 (Government): And we refer to Sweden, talking on behalf of all Nordic countries, Romania, Hungary, Russia, Switzerland, Germany, UK, Netherlands, Australia, and Malaysia.
GR1 (Government): That is why the Sengen Border Code distinguishes between preventing entry action against illegal entry.
Guido Raimondi (JudgeP): I'm sorry, but I ask you to conclude, please.
GR1 (Government): Sorry.
GR1 (Government): So just to conclude, we consider that there has not been expulsion.
GR1 (Government): Expulsion has not been collective in the sense that there have been internal remedies and possibilities to request.
GR1 (Government): And Article 13 must decay as there is no violation of Article 4 of Protocol 4.
GR1 (Government): Sorry for the little delay.
GR1 (Government): And thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Leon Cavero.
Guido Raimondi (JudgeP): And now I call the European Commissioner for Human Rights, Mrs. Mijatović, to the floor,please.
TP2 (ThirdParty): Mr. President, distinguished members of the Court,
TP2 (ThirdParty): this is my first appearance before this Court since the beginning of my mandate in April this year.
TP2 (ThirdParty): It is based on the work of my predecessor, Nils Mužnjak, in particular the written comments he submitted to this Court in November 2015 and March 2018 concerning the case you are hearing today.
TP2 (ThirdParty): His work included a visit to Melilla and Madrid in January 2015, as well as continuous monitoring work and dialogue with the Spanish authorities.
TP2 (ThirdParty): I have decided to take part in this hearing because of the special importance this case has for the protection of the human rights of migrants, asylum seekers and refugees.
TP2 (ThirdParty): While migration-related issues are omnipresent in the public debate, it has become increasingly difficult for those in need of protection to reach Europe in a safe and legal way.
TP2 (ThirdParty): And perhaps most worryingly, there appears to be a growing assumption that those who cross borders in an irregular manner should not be entitled to human rights protection.
TP2 (ThirdParty): This is unethical to the principle reiterated by this Court that states have the right to control migration but must do so in full respect of their Convention obligations.
TP2 (ThirdParty): In a context so clearly marked by risk of rolling back essential protection, ensuring that states act in accordance with the Court's case law became one of the top priorities of my office.
TP2 (ThirdParty): Our work has focused on a number of key rights at stake in today's case.
TP2 (ThirdParty): Firstly, the right to be protected against collective expulsion.
TP2 (ThirdParty): Across Europe, we are witnessing a multiplication of summary expulsion of migrants and potential asylum seekers without an assessment of the individual circumstances of each and every person.
TP2 (ThirdParty): These expulsions happen at land borders and at sea, at borders between Member States and non-Member States of the Council of Europe, but also at borders between Council of Europe Member States.
TP2 (ThirdParty): My predecessor repeatedly raised concerns regarding such summary expulsions, including with the authorities of Bulgaria, Greece, Hungary, Italy, Spain and Switzerland, each time aiming to uphold the basic principles set out by this Court.
TP2 (ThirdParty): Crucially, the work of my office has been based on the premise that the prohibition of collective expulsion applies to all, regardless of whether they claim asylum or enter the Member State in an irregular manner.
TP2 (ThirdParty): My office has also followed the Court's lead by addressing the prohibition of collective expulsion not only in cases where the persons have entered the territory of a Member State, but also when they had been refused admission.
TP2 (ThirdParty): In line with the Court's finding in Sharifi and others, that Article 4, Protocol 4 also applied in that situation.
TP2 (ThirdParty): In this context, I want to highlight the crucial contribution of the Court's case law in two respects.
TP2 (ThirdParty): Firstly, its recognition, in particular in Hirsi Jamma, that the protection provided by the Convention must adapt to changing migration patterns and border control practices, with the aim of ensuring that guarantees for migrants, asylum seekers and refugees remain practical and effective, and do not become theoretical and illusory.
TP2 (ThirdParty): And secondly, that the challenges States meet in managing migratory flows cannot justify practices incompatible with obligations under the Convention, as this Court has clearly stated in Hirsi Jamma and in Georgia v. Russia.
TP2 (ThirdParty): A second area of work is a separate but related issue of protection against refoulement, including by ensuring access to asylum procedure.
TP2 (ThirdParty): Again my Office has on several occasions reminded Member States of this Court's case law, establishing that Convention obligations with regards to non-refoulement can also be triggered when a State intercepts a person before they can enter their territory, provided they were under the effective control of the State.
TP2 (ThirdParty): In light of all this, I now want to share a number of observations on the situation in Spain.
TP2 (ThirdParty): My predecessor visited Melilla and Benrit in January 2015 in a context marked by consistent reports of regular summary returns to Morocco of migrants having climbed the fence surrounding the city of Melilla.
TP2 (ThirdParty): All information gathered during the visit pointed to the existence of an established practice of immediate expulsion of migrants, most of them sub-Saharan.
TP2 (ThirdParty): Once they come down from the fence without any individualised or reasoned written decision or an assessment of their protection needs.
TP2 (ThirdParty): Following this visit, we continued to receive reports of summary expulsions at the borders of Ceuta and Melilla.
TP2 (ThirdParty): In a letter of July 2016 to the Spanish Minister of the Interior, my predecessor reiterated his concerns about these expulsions, which in practice also deprived migrants of any possibility to seek asylum.
TP2 (ThirdParty): The practice of summary returns was given legal underpinning through the adoption in 2015 of amendments to the legislation on foreigners.
TP2 (ThirdParty): These amendments fell short of providing clear guarantees against collective expulsions and reforms, including the right to be identified, to have one's protection needs assessed and to have access to an interpreter and to legal assistance.
TP2 (ThirdParty): Apart from raising serious concerns in relation to the prohibition of collective expulsion and reform, the practice I have just described also has obvious implications for the right to an effective remedy.
TP2 (ThirdParty): Since they are immediately expelled to Morocco, those affected do not have access to any procedure in Spain to request a review of the expulsion decision.
TP2 (ThirdParty): Even if they did have access to such a procedure, the lack of an individualized and reasoned written expulsion order would make it impossible to start such review proceedings.
TP2 (ThirdParty): Finally I would like to conclude my intervention by addressing two arguments that have been raised in this case.
TP2 (ThirdParty): Firstly, the argument that persons intercepted on or near the fence cannot be considered as having entered Spain and should therefore not benefit from the protection of the Convention.
TP2 (ThirdParty): As noted in my predecessor's written comments, official bodies and the Court in Spain have asserted that the border fences are indeed on Spanish territory.
TP2 (ThirdParty): But irrespective of that, I note that this Court has found in Sharifi and others that the question whether the applicants had de facto entered Italy or had been refused admission was irrelevant, since the protection against collective expulsion would apply in either case.
TP2 (ThirdParty): This Court has also found a violation of the prohibition of collective expulsion in cases of migrants intercepted outside the territory of a member state on the basis that the authorities had effective control.
TP2 (ThirdParty): All information available indicates that persons who have scaled the border fences and subsequently climbed down are apprehended and removed by the Spanish authorities.
TP2 (ThirdParty): At no point has my office received information that any other state's authorities shared control over those apprehended until the moment they were handed over to the Moroccan authorities.
TP2 (ThirdParty): The second issue is the argument that the applicants could have applied for asylum.
TP2 (ThirdParty): In my view, this should not distract attention from the actual situation at stake.
TP2 (ThirdParty): The applicants alleged have tried to enter Malia by crossing the border fence and having been apprehended in this process.
TP2 (ThirdParty): The basic question should be whether their right to be protected against collective expulsion was violated at that point.
TP2 (ThirdParty): The fact that the applicants could have theoretically taken another course of action should bear no relevance.
TP2 (ThirdParty): However, let me stress that applying for asylum in Malia through regular channels seems practically impossible for the sub-Saharan Africans.
TP2 (ThirdParty): As highlighted by many, including my predecessor, the Spanish National Ombudsperson, and most recently the Council of Europe's Secretary General's Special Representative on Migration and Refugees, migrants of sub-Saharan origin are prevented from accessing the border post on the Moroccan side.
TP2 (ThirdParty): It means that in practice they cannot access the official Spanish asylum office at Beny al-Zahra border post either.
TP2 (ThirdParty): Thus, they are left with the option of climbing over the fence, taking the sea, or using a regular means of crossing the border point.
TP2 (ThirdParty): One could also note that migrants intercepted on or near the fence could in principle be brought by the Guardia Civil to the border post and asylum office of Beny al-Zahra so that they can formally be identified and, if necessary, introduce an asylum application at the appropriate place.
TP2 (ThirdParty): However, to my knowledge, this has never been done so far.
TP2 (ThirdParty): I will conclude my comments by reiterating that protection against collective expulsion and against refoulement, as well as access to effective remedies, are crucial components of migration control system that is human rights compliant.
TP2 (ThirdParty): However, the practice of summary returns to Morocco of migrants who attempt to enter Melilla by climbing the fence deprives them of the possibility of being identified and having their individual situation duly assessed and having access to an effective remedy.
TP2 (ThirdParty): Mr. President, distinguished members of the Court, I hope my comments will be helpful
TP2 (ThirdParty): to the Court, and I thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Madam Commissioner.
Guido Raimondi (JudgeP): And now I call the representative of the UNHCR.
Guido Raimondi (JudgeP): Mrs. O’hara, please, you have the floor.
TP1 (ThirdParty): Mr. President, distinguished judges, the Office of the United Nations High Commissioner for
TP1 (ThirdParty): Refugees thanks the Court for allowing us to intervene as a third party, and it's an honour for me as Director of the Division of International Protection to present UNHCR's views here today.
TP1 (ThirdParty): This submission is made in the exercise of UNHCR's mandate, and in particular supervisory responsibility in accordance with its statute and Article 35 of the 1951 Convention relating to the status of refugees, as the present case raises issues of law and state practice regarding the scope and the implications of the non-refoulement obligation under international refugee and human rights law.
TP1 (ThirdParty): My comments are also informed by our detailed knowledge of the situation at the CETA and Melilla enclaves. The present case is of particular interest to UNHCR and to many Member States