TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The distinction comes in the second part of the test, when the court assesses whether arguments were raised and were individually examined in a reasonable and objective manner before the expulsion.
AP1 (Applicant): What does this mean for the present case?
AP1 (Applicant): It means that before examining issues relating to asylum, the intention to claim asylum, the credibility of a claim, the situation in the country of origin or the existence of potential safe third countries, one has to ask the procedural question, did the applicants have an opportunity to raise arguments, any arguments against the expulsion, before they were sent back to Morocco?
AP1 (Applicant): On the 13th of August, nobody was provided with that opportunity.
AP1 (Applicant): The applicants were not even registered.
AP1 (Applicant): They were not given any opportunity to express their intention to claim asylum or their fears of ill treatment in Morocco.
AP1 (Applicant): And as a result, these arguments could not have been considered by Spain, let alone in an appropriate manner and in light of information available at the time as to the fate of sub-Saharan refugees and migrants in Morocco.
AP1 (Applicant): The applicants do not claim that, as Spain states, that there is an absolute right to lawful entry.
AP1 (Applicant): They claim that under Article 4, Fourth Protocol, they should have had an opportunity on the 13th of August, 2014, to challenge their expulsion back to Morocco.
AP1 (Applicant): In fact, the concept of a lawful entry is irrelevant under the article.
AP1 (Applicant): What matters is that the applicants were factually on Spanish soil under the effective control of Spanish officers and that they were factually driven away.
AP1 (Applicant): This is the definition of expulsion in both Hilsi and Ghaifria.
AP1 (Applicant): And unless an opportunity to raise arguments is provided, this expulsion is collective.
AP1 (Applicant): In the present case, this opportunity was explicitly excluded by Spain's operative border protocol for the applicants and for anyone, regardless of the type or the strength of any argument they may have had against their expulsion.
AP1 (Applicant): Spain attempts to defend this unlawful policy with migratory pressure, ignoring this court's clear jurisprudence on this point.
AP1 (Applicant): Migratory pressure cannot justify summary expulsions in violation of Article 4, Fourth Protocol.
AP1 (Applicant): In fact, it is precisely in situations of high arrival numbers of persons with protection needs that the safeguard of Article 4, Fourth Protocol finds its whole purpose.
AP1 (Applicant): And it is exactly then that these guarantees must be upheld.
AP1 (Applicant): Aside from this legal principle, factually, as also pointed out by the Council of Europe's Commissioner for Human Rights in front of the chamber, at the material time, asylum applications in Spain merrily represented 1% of those within the EU.
AP1 (Applicant): However, when facing migratory challenges, states can request and receive support from the European Union.
AP1 (Applicant): To this day, Spain has never made any such requests in relation to its African enclaves.
AP1 (Applicant): As a result, and unlike, for example, in Italy or Greece, the European Asylum Support Office, EASU, was never deployed in Ceuta or Melilla.
AP1 (Applicant): Instead, Spain's political choice is to ignore its legal obligations and simply enforce arbitrary and automatic expulsions.
AP1 (Applicant): This is how, like everyone else on the 13th of August, the applicants were automatically denied any access to any remedy against their expulsion.
AP1 (Applicant): There was no effective domestic remedy, neither practically nor theoretically, which they could have exhausted before coming to this court.
AP1 (Applicant): They seek a remedy here today.
AP1 (Applicant): in the course of my preparation of this hearing, Mr. Endi told me again what he had gone through
AP1 (Applicant): during his migratory path, including in Morocco, then asked me to say the following on his behalf.
AP1 (Applicant): I still cannot accept that humans can treat humans like that.
AP1 (Applicant): When my rights were violated by Spain, harm was done to me.
AP1 (Applicant): What I would like from this court is that measures are taken to stop such harm from being done to other people.
AP1 (Applicant): I would like to see that justice exists, even for those who are poor, vulnerable, and do not have a voice.
AP1 (Applicant): I will end on this note and give the floor to my colleague, Mr. Bollier.
Guido Raimondi (JudgeP): Thank you very much Mr. Gericke, Mr. Boye for eight minutes please.
AP2 (Applicant): Mr. President, Honorable Member of the Court,
AP2 (Applicant): Spain claims that the applicant's right should not be enforced because they could have applied for asylum at the Benin-Sar border post, the Spanish embassy, or the Spanish consulate.
AP2 (Applicant): As you have already heard from my colleague, the legal issue of this case is not asylum, but the opportunity to raise argument, any legal argument, against the expulsion before it is executed.
AP2 (Applicant): So legally, Spain's claims do not stand.
AP2 (Applicant): It also does not stand factually.
AP2 (Applicant): It is absolutely untrue that the applicants could have access to asylum through Benin-Sar, the embassy, or the consulate.
AP2 (Applicant): As the Kingdom of Spain knows, the processing of asylum claims at embassies and consulates awaits implementing legislation to become a reality in Spain.
AP2 (Applicant): I refer the Court to the EIDL report we submitted for this hearing.
AP2 (Applicant): In fact, the document Spain submitted on asylum claims at embassies is entitled, Asylum Claims Formulate at Embassies and Not Granted, as Spain alleged.
AP2 (Applicant): And as correct by Spain in Rabat, there were only 9, not 139, of such formulate claims, and all by Moroccan citizens, with no legislation or mechanism in place for these claims to actually be processed.
AP2 (Applicant): So the Kingdom of Spain's argument that the applicants could have access asylum at either the Rabat embassy or the Nador consulate is completely false, both legally and factually.
AP2 (Applicant): It is through similar distortion that Spain's tried to confuse us on access to asylum at the Benin-Sar border post at the material time.
AP2 (Applicant): The numbers that are relevant are those asylum claims submitted at the border as opposed to in the territory.
AP2 (Applicant): Therefore, the Benin-Sar crossing, the relevant numbers are at the border.
AP2 (Applicant): If we look at Spain's Annex 25, the third Excel table provides a list of all asylum claims made in Melilla by date and nationality.
AP2 (Applicant): In this document, we see first that no asylum claim was made in Melilla at the border before the 20th of September, 2014.
AP2 (Applicant): Second, that after that time, not a single one of the asylum seekers at the border is sub-Saharan.
AP2 (Applicant): Data from the Spanish Ministry of Interior confirmed that this situation did not change.
AP2 (Applicant): In our additional Annex 3, you will see that only two people from sub-Sahara could claim asylum at the border.
AP2 (Applicant): In the period from 2015 to 2017.
AP2 (Applicant): These were two women who escaped racial profiling by wearing full burkas, as the newspaper El Diario explained in an article submitted by us as Annex 98.
AP2 (Applicant): In fact, at the material time, as much as today, because of racial profiling on the Moroccan side in particular, it was not possible for sub-Saharan to even reach the border post.
AP2 (Applicant): This was acknowledged by the then Spanish Ministry of Interior, Mr. Soido.
AP2 (Applicant): I referred you to our additional Annex 2.
AP2 (Applicant): But also, the third-party intervention from the Council of Europe's Commissioner for Human Rights and the United Nations High Commissioner for Refugees, and a number of reports we submitted from Amnesty International, the Spanish Ombudsperson, and the CIA, to cite a few.
AP2 (Applicant): This was also the experience of the applicants, who tried to hide into the crowd and access the border post, were chased by Moroccan officers.
AP2 (Applicant): It was the experience of some of their friends, who during similar attempts, were severely injured by Moroccan officers.
AP2 (Applicant): And it's also what comes out of all the evidence submitted in this case.
AP2 (Applicant): The confusion created by the Kingdom of Spain is another illustration of its attempt to hide the reality, that it was never possible for any sub-Saharan person, whether migrant, refugee, unaccompanied minor, or any other vulnerable person, to access the Benyansar border post, let alone climb asylum there.
AP2 (Applicant): And if they reach Spanish territory through the land border, these people were, and still are, automatically expelled.
AP2 (Applicant): This practice was turned into law in Spain in 2015.
AP2 (Applicant): That law has been challenged in front of the Spanish Constitutional Court, with arguments in line with the present application.
AP2 (Applicant): And it was the head of the current government, Mr. Pedro Sanchez, then a parliamentarian,
AP2 (Applicant): who filed this constitutional complaint.
AP2 (Applicant): So there are two different positions.
AP2 (Applicant): The one sustained by the representative of the Kingdom of Spain in front of this court, and a totally different one, but in line with our position, sustained from the heart by the government of Spain in front of the Constitutional Court.
AP2 (Applicant): We should not confuse the representation of the Kingdom of Spain with the government of Spain.
AP2 (Applicant): And in this line, the Spanish government trusts that you will give them the legal support it needs, the government of Spain, to comply with its obligation to respect the European Convention of Human Rights.
AP2 (Applicant): They are waiting for you, Your Honor.
AP2 (Applicant): the promises of politicians may change, depending on whether they are in opposition or in power.
AP2 (Applicant): But the guarantees of the Spanish Constitution and those of the European Convention should be immutable.
Guido Raimondi (JudgeP): Thank you very much, Mr. Boye.
Guido Raimondi (JudgeP): Now I call Mr. Leon Cavero.
GR1 (Government): I'm honorable members of the Grand Chamber.
GR1 (Government): Spain would like first of all to convey its gratitude for the Great Chamber for having accepted the referral before it.
GR1 (Government): My government feels concern and responsibility regarding a balanced resolution of this case in which several persons who are entitled to human rights want a balanced resolution by the Chamber.
GR1 (Government): In fact, the interests are multiple, namely first of all the interests and human rights of migrants who are enticed at their homeland by hideous mafias that earn huge profits.
GR1 (Government): It is estimated that at least 1,000 million euros a year in sub-Saharan Africa alone, and they entice migrants with the promise of the possibility of unlawfully entering to the European territory due to flaws in border control.
GR1 (Government): They often leave at their fate migrants in deserted areas to die, and they even submit them to several types of exploitation and abuse even when they have reached the European territory.
GR1 (Government): So the first thing that the government is concerned about is about the signal that the decision of this court may have enhancing the outrageous interests of mafias who profit from this.
GR1 (Government): Secondly, the rights and the enjoyment of human rights by people residing and in transit in Europe whose peaceful enjoyment of human rights depends on the orderly management of migration flaws.
GR1 (Government): It is well known that terrorist organizations and organized crime in general takes profit of flaws in border management.
GR1 (Government): And thirdly, women and men who make the hard work of border control, whose lives and personal integrity might be endangered senselessly if a resolution is not well balanced.
GR1 (Government): In fact, Article 17 and Article 53 of the Convention oblige all of us to make interpretation of the Convention which is balanced for all the human rights that might be at question in a particular case.
GR1 (Government): Here it is not only Article 4 of Protocol 4, but Article 2 and Article 3, the respect of the life and personal integrity of all Europeans who are living in European territory.
GR1 (Government): Spain is quite conscious of its positive obligations deriving from the Convention and in fact it has showed a deep attachment to these positive obligations.
GR1 (Government): Recently this summer, Spain gave shelter and safe harbor to a rescue ship well beyond its strict international obligations and nowadays it has made an agreement with a rescue NGO, the Open Arms, in order to coordinate the efforts of the Spanish rescue fleet together with that of NGOs in order to enhance the rescue of migrants at sea, not only in territorial waters but also in international waters.
GR1 (Government): But at the same time, my government considers that a non-balanced resolution of this case and we humbly believe that the resolution given by the Chamber is not balanced, might only go on behalf of these hideous mafias and against the human rights of migrants, European citizens and members of border control.
GR1 (Government): Secondly we are concerned also about a quite interesting and important procedural issue, which is that the Conventional system is based on the right of individual application and it cannot give shelter to mere actual popularists that may give or put a spanner in the wheels of the Conventional system.
GR1 (Government): So we do not think that this Court should engage in cases that do not have real interest from the part of the applicant and that take part of what is called a strategic litigation.
GR1 (Government): So coming to the subject of the instant case, we want to signal two basic facts which have been more than proved by Spain and that are quite important and indispensable for the resolution in law of this case.
GR1 (Government): First of all is that both applicants did not come from an unsafe country.
GR1 (Government): We must recall the inadmissibility decision of 7th July 2015 of the Chamber, which is final and has not been challenged.
GR1 (Government): In that decision the Chamber considers manifestly ill-founded the claim of a breach of Article 3 together with Article 13 of the Convention.
GR1 (Government): It is to say the Chamber establishes as fact that it has not been proved at all that any ill-treatment had come either from the Spanish forces or from the Moroccan forces.
GR1 (Government): And this is a final decision and it is a departing fact which cannot be unknown.
GR1 (Government): Secondly, as a proof of this, there are positive declarations regarding the Moroccan efforts to integrate migrants and asylum seekers.
GR1 (Government): It is not only Moroccan legislation and the signature and ratification long time ago by Morocco of international agreements, the Geneva Convention in particular, and also the establishment in the long time ago of the Bureau des Réfugiés Abattris, the BRA, but also the declarations made by Anne Brasseur in her capacity of President of the Parliamentarian Assembly of the Council of Europe made in December 2015 regarding the efforts of the Moroccan authorities in this sense, and also the United Nations High Commissioner of Refugees, who is long time deployed in Rabat with a big office, who made an agreement with the Moroccan government in 2007, who has a web page where it praises the efforts and the real possibility of requesting asylum in Morocco.
GR1 (Government): But also there are the Spanish Committee for Help for the Refugees, which is a third party intervener who says in page 3 of its submission that Morocco rectified its asylum system in 2013.
GR1 (Government): Also in footnote 17 of the applicant's submission to this Grand Chamber where it says that the refugee system in Morocco was working effectively in 2013 and 2014.
GR1 (Government): We must note that Mr. N'Di could request asylum in the Rabat offices because according to
GR1 (Government): his own account, he lived in Rabat from April 2012 to December 2013, a fact which is curiously skipped by Mr. Boyer and Mr. Krikke in their submissions.
GR1 (Government): And also we must note that according to footnote 28 of the applicant's submissions to the Grand Chamber, Mr. N'Di, who is a national of Ivory Coast, did not need a visa to lawfully enter
GR1 (Government): and lawfully stay in Morocco, so he was residing lawfully in Morocco at the date that presumably the facts took place.
GR1 (Government): The second fact which is important is that the applicants never bore valid legal grounds to request asylum.
GR1 (Government): And as a consequence, it is more than proof that they migrate for economic reasons and that the principle of non-refoulement is not applicable in this case.
GR1 (Government): Regarding Mr. N'Di, Mr. Boyer is his lawyer since December 2014.
GR1 (Government): This is four months before the claim was posted before the court.
GR1 (Government): He has never requested asylum on behalf of Mr. N'Di.
GR1 (Government): He hasn't done this so far until now.
GR1 (Government): He did not seek judicial review against the disbursing order that reached the final status.
GR1 (Government): And Mr. N'Di fled to an unknown place.
GR1 (Government): As regarding Mr. N'Di, he didn't request asylum when he finally entered unlawfully in Spain
GR1 (Government): late in 2014.
GR1 (Government): He only requested asylum for instrumental reasons when the decision on expulsion was final because he knew that the law on asylum of Spain stays automatically expulsion once asylum is requested.
GR1 (Government): According to Spanish law, two reports were requested from the United Nations High Commissioner for the Refugees Office in Spain regarding the possible right to asylum of Mr. N'Di.
GR1 (Government): And we have transcripted the two reports made by the Office of the United Nations High Commissioner for the Refugees, which are quite clear in the sense that there is no ground for him to request asylum.
GR1 (Government): In fact, he returned to Mali in 2015 with the knowledge and consent of the Malian consular authorities.
GR1 (Government): He has lived there ever since.
GR1 (Government): And to date, no danger has been reported against his person.
GR1 (Government): So we are concerned with a case regarding Article 4 and Protocol 4, which does not have any connection with Article 3.
GR1 (Government): And therefore, the principle of non-reformo is not applicable at all.
GR1 (Government): Now we'll go to the law.
GR1 (Government): First of all, we will expose our procedural grounds.
GR1 (Government): And the first one is the lack of proof of victim status.
GR1 (Government): The Chamber says that facts are proved because the applicants gave a coherent account of the circumstances, which was supported with video footage that appears credible, because the government did not deny, quote, summary expulsions, a later amended internal law, and because the government cannot profit from the non-identification, as it is the government to blame for it.
GR1 (Government): But we must say the following.
GR1 (Government): First of all, proof of participation.
GR1 (Government): The applicants only say that they appear in certain parts of the video footage.
GR1 (Government): In order to prove that, any lawyer knows that it must furnish, first of all, photo of the applicants, so that it can be matched with the video footage.
GR1 (Government): But if we look at the applications, there is no photograph of Mr. N.T. in the applications
GR1 (Government): annexed.
GR1 (Government): And as regards Mr. N.D., what is annexed is a blurred photocopy of an identity card, where
GR1 (Government): it is impossible to see the face.
GR1 (Government): Was it possible to furnish a photograph of the applicants with the applications?
GR1 (Government): We consider that it was quite possible, and it was indispensable to make matching.
GR1 (Government): So Spain wanted to collaborate with the justice in this case, and that is why it took the high-quality ID photographs, which were taken when months later they unlawfully trespassed the border, and gave those photographs to the court.
GR1 (Government): They have not been challenged so far that these are right photographs.
GR1 (Government): On top of that, Spain took the costs of making an expert report by experts which have been recognized European-wide for being very good forensic experts.
GR1 (Government): And the conclusion was that it was not possible to make the matching, and they took all images and they put them as neat as they could be, and it was impossible.
GR1 (Government): This was four years ago, and in these four years, the applicants and the applicants' lawyers could have furnished an alternative expert report.
GR1 (Government): We are still waiting for it.
GR1 (Government): So we consider that it was possible to make the identification, but the applicants have not furnished their burden of proof.
GR1 (Government): Secondly, there are contradictory accounts of the facts in the applications.
GR1 (Government): The applicants' lawyers talk about very dramatic circumstances, and between these dramatic circumstances, it is said that one of the applicants broke his leg in the summer, and that the other, before climbing, received a stone throw and hit the soil, almost breaking his leg.
GR1 (Government): So how was it possible if they said that one says that he had his leg broken, and the other says that he was badly injured while attempting to climb the first fence, to climb the three fences, and stay so many hours on top of the third fence?
GR1 (Government): So there are contradictions on the account of facts which come from reading the application only.
GR1 (Government): Third, Spain has never recognized summary expulsions, as the judgment says, but only that it has acted to prevent entry, which is quite a different thing.
GR1 (Government): And this recognition does not have anything to do with the proof of the facts.
GR1 (Government): Also the theoretical testimony of third parties who were or not at the facts cannot serve as a confirmation.
GR1 (Government): And as to the non-assessment of domestic remedies, it is the applicants to blame, as we will later expose.
GR1 (Government): So there are not strong, clear, and concordant inferences of similar and rebutted presumptions of fact that serve to support the participation of the applicants on the facts, as it is required by Para 264 of the Great Chamber Judgment in Oran versus Turkey, which is precisely cited by the applicants in their submissions.
GR1 (Government): So according to the Great Chamber Judgment on Borden versus the UK, Paras 33 and 29, the applicants have not shown, and it was possible, that they were directly affected.
GR1 (Government): And if they have not shown or proved that they were directly affected, the Convention does not envisage, quote, the bringing of an act to popularize for the interpretation of the rights it contains or permit individuals to complain about a provision of domestic law simply because they consider, without having been directly affected by it, that it may contravene the Convention.
GR1 (Government): And nonexistence of victim status before the date of filing the application.
GR1 (Government): The application was filed on the 17th February 2015.
GR1 (Government): And at that moment, the decision of the court was useless to the applicants because, first of all, they didn't, at that time it was clear, and it had been reported by the United Nations High Commissioner of the Refugee, that ND didn't have right for asylum, and NT had never requested asylum, and their decisions were internal decisions and internal proceedings had already taken place.