TrustHLT/LaCour huggingface dataset:
André Potocki (Judge): Donc permettez-moi de formuler cette fois-ci la question de façon assez abstraite pour que les positions soient bien claires aux yeux de la Cour.
André Potocki (Judge): Est-ce que les parties et les parties intervenantes considèrent que dans des conditions où il serait établi que toute personne considérant qu'elle est menacée de traitement contraire à la Convention peut demander l'asile, des personnes qui n'auraient pas eu recours à cette possibilité effective pourraient néanmoins invoquer l'article 4 du protocole 4?
André Potocki (Judge): C'est donc la question de principe et non pas les modalités précises dans cette affaire sur laquelle je voudrais avoir votre position.
André Potocki (Judge): Merci beaucoup.
Guido Raimondi (JudgeP): Please be seated. The hearing is resumed. And I call Mr. Gericke.Please you have the floor.
AP1 (Applicant): I will start by answering the question of Judge Kuskosch-Stadelmeier.
AP1 (Applicant): The first question was whether we are still in contact with both of my clients.
AP1 (Applicant): And I, of course, can confirm that.
AP1 (Applicant): I explained in paragraph 20 in our submissions the ways how we communicated with both applicants.
AP1 (Applicant): Both applicants were informed of every single step in this procedure, including the referral decision by this court and about the hearing that takes place today.
AP1 (Applicant): And as you refer to my specific quote of my client, Mr. N.D.,
AP1 (Applicant): he asked me to say this to you.
AP1 (Applicant): And I felt obliged to share his views with the court.
AP1 (Applicant): This question was also raised already.
AP1 (Applicant): The question of maintenance of contact was also raised before this hearing and by the Spanish government.
AP1 (Applicant): And I further explained the situation in a letter to the court on this very aspect and also pointed out the issues of confidentiality and the lawyer-client privilege in that context.
AP1 (Applicant): But I can confirm, and it is quite clear, that we are in contact with both applicants.
AP1 (Applicant): The second question was about the question concerned what, in particular, Mr. N.T., but in fact both applicants,
AP1 (Applicant): would have said had they had the possibility to raise arguments before their expulsion back to Morocco on the 13th of August.
AP1 (Applicant): And this is also, I already mentioned this in my presentation, but maybe one point needs to be clarified.
AP1 (Applicant): When we said that this possibility is not about this case, it's not about an asylum, this referred to the Spanish submissions that always point to the later asylum claim and the asylum procedure that took place in Spain after the second entry.
AP1 (Applicant): What we also submitted earlier today is that the case is, insofar, not only about asylum or not limited on asylum claim, maybe this is the better phrasing, but also about the possibility to raise other kind of claims against an expulsion and, of course, in particular, Article 3 of the Convention, but even not limited to that.
AP1 (Applicant): So we submit that in the present case, had the applicants the opportunity to raise arguments before the expulsion to Morocco, and D, of course, first would have expressed his claim that he wishes to claim asylum in this situation, and as he did later.
AP1 (Applicant): And for both applicants, of course, they would have raised claims as to their fear of ill treatment in Morocco in the hands of the Moroccan authorities.
AP1 (Applicant): And as I explained in the beginning of my presentation, of my speech, they both face violence, disproportionate violence on that day.
AP1 (Applicant): They saw how their friends were being up.
AP1 (Applicant): They visited how other climbers were violated and beaten.
AP1 (Applicant): And both of them also would have referred to the more general situation in Morocco, because it is quite clear.
AP1 (Applicant): And also, we submitted a lot of evidence on that point that there are systematic issues of violence against, in particular, sub-Saharan refugees and migrants in Morocco.
AP1 (Applicant): The UN raised this point, for example.
AP1 (Applicant): And these would also have been their claims that in the course of their deportation and afterwards, they had faced ill treatment.
AP1 (Applicant): And finally, this is all confirmed, this experience that they made, these regular raids, for example, they faced during their stay in Morocco, them being targeted by state authorities.
AP1 (Applicant): All of this is not only their single experience, but it is raised in many reports.
AP1 (Applicant): I refer you to the Human Rights Report that we annexed as Annex 29, Medicin Sans Frontieres, Trapped at the Gates of Europe, Annex 14, GADEM, Annex 20.
AP1 (Applicant): And in particular, we addressed this very issue also in our submissions on paragraph 4 and 246.
AP1 (Applicant): So this was, I think, the question you raised.
AP1 (Applicant): The next question we were asked was about Judge Bosniak.
AP1 (Applicant): And the question was, I think, quite similar.
AP1 (Applicant): So the issues, what they have raised, I think I already responded to.
AP1 (Applicant): The second part of your question concerned the evidence submitted in this case.
AP1 (Applicant): And insofar for what concerns the pictures, we submitted pictures in particular for this hearing that allow for a visual impression of the material we submitted to the court.
AP1 (Applicant): But as we explained in our second submission to the chamber, we submitted these pictures, most and foremost, because the applicants identified themselves on these pictures.
AP1 (Applicant): They saw these pictures, they saw these videos, they identified themselves in that evidence.
AP1 (Applicant): And this is why we felt obliged to also share this evidence with the court.
AP1 (Applicant): As for the credibility of their accounts, we also heard Spain's submissions on that point.
AP1 (Applicant): This is all.
AP1 (Applicant): We already addressed this point in our submissions at paragraph 26 to 28, where we expressly explained why it is simply not true that the accounts of the applicants are not accurate.
AP1 (Applicant): We said Spain compared the wrong persons and made distortions and misquotes of their account in order to kind of change their reputation.
AP1 (Applicant): The next question we were asked by Judge Paykal was about the question where the two applicants are staying now.
AP1 (Applicant): And we also addressed this in our written submissions.
AP1 (Applicant): Mr. Nd still lives in Mali at the border to Senegal.
AP1 (Applicant): And Mr. Nt still lives in Spain, in the south of Spain,
AP1 (Applicant): in Andalusia.
AP1 (Applicant): The next set of questions we were asked by Judge Ilozogui.
AP1 (Applicant): The first question was about the question of when exactly Mr. Nd left Mali.
AP1 (Applicant): And we pointed this out in our written submissions that we were instructed that he left Mali at the end of 2011 or the beginning of 2012.
AP1 (Applicant): This is what he said on this point.
AP1 (Applicant): The next question was why he never tried to apply for asylum, both at Spanish embassies or consulates.
AP1 (Applicant): And I think this question was already answered by my colleague, Mr. Bouguier,
AP1 (Applicant): that this possibility simply does not exist because the respective legislation is missing.
AP1 (Applicant): And for the first time, we heard today about the alternative possibility for an ambassador to allow for a visa.
AP1 (Applicant): But this is only a theoretical possibility.
AP1 (Applicant): And Spain, for good reasons, did not submit any evidence as to the practicality, as to the effectiveness of this possibility.
AP1 (Applicant): The question was also raised whether or why they haven't or he hasn't applied for asylum.
AP1 (Applicant): For example, in Morocco.
AP1 (Applicant): And this question was also, and so far, I also would like to draw your attention to paragraph 2 and 4, 2 to 4 of our submissions, where we explicitly referred also to a fact sheet from UNHCR on the situation in Morocco because this possibility did not exist in 2012 until 2014.
AP1 (Applicant): Even UNHCR holded their services.
AP1 (Applicant): And therefore, I also have to say that the Spanish government misquoted our submissions as to this point in the hearing today.
AP1 (Applicant): The next question we were asked was why Mr. Endi's asylum
AP1 (Applicant): application was dismissed.
AP1 (Applicant): And you find the answer to this also in the annexes that the Spanish government submitted to the court.
AP1 (Applicant): And the reason was that the Spanish authorities found in 2015 that he does not fulfill the definition of the refugee convention.
AP1 (Applicant): It does not apply for him.
AP1 (Applicant): As to Mr. Endi, we said that he left Cote d'Ivoire
AP1 (Applicant): in a post-conflict situation of high instability.
AP1 (Applicant): He also managed to re-enter Spain.
AP1 (Applicant): And I explained that he's now living in the south of Spain.
AP1 (Applicant): He did not apply.
AP1 (Applicant): This is correct.
AP1 (Applicant): He did not apply for asylum other than Mr. Endi.
AP1 (Applicant): After his transfer to the Spanish mainland, he was advised by lawyers in Spain about this possibility, but also about the possibility to apply for a residence permit under the so-called arrego social, which is a mechanism in Spain that is explicitly foreseen for persons in his situation and allows to legalize a status by work, in particular by working in the agriculture sector in Andalusia.
AP1 (Applicant): And since he does not have to fear the deportation back to Morocco, he lived in a relatively safe environment.
AP1 (Applicant): This is the answer to that question.
AP1 (Applicant): We were also asked about documents.
AP1 (Applicant): We submit ID documents.
AP1 (Applicant): And I can also, in so far, refer you to the case file, because we submitted the city cards for both applicants.
AP1 (Applicant): And in fact, until now, nobody has ever claimed that the applicants do not exist or that their account does not match with this case.
AP1 (Applicant): And I only refer you, for example, for Mr. Endi
AP1 (Applicant): to the video interview that I also mentioned earlier today, that he gave two days to a member of the Spanish Parliament, by the way.
AP1 (Applicant): This is the next question.
AP1 (Applicant): We were asked by Judge Karakash about the situation at the border now.
AP1 (Applicant): As far as we are aware, the problem of racial profiling on the Moroccan border still exists, and many sources at the moment say that the situation has become much worse, in particular in the last couple of months.
AP1 (Applicant): But it is still the fact that sub-Saharan refugees and migrants have no possibility at all to reach the Benin-Za border post.
AP1 (Applicant): Then we were asked, sorry that I know that I already spoke 10 minutes, but there are some further questions.
AP1 (Applicant): The next question we were asked was by...
Guido Raimondi (JudgeP): Yes, in fact we are already at 14 minutes, but I understand there were quite a number of questions.
Guido Raimondi (JudgeP): So please go ahead.
AP1 (Applicant): I try to be as fast as possible.
AP1 (Applicant): The next question we were asked was by Judge Nussberger about how we see what is our position as to defense in relation to international law.
AP1 (Applicant): And of course, I will only answer this question in relation to Article 4 of the Protocol and the jurisdictional issues.
AP1 (Applicant): And our position on this is that the fence itself and the question whether a fence is built that cannot be climbed or trespassed, this is not a problem, or this is not an issue of Article 4 of Protocol.
AP1 (Applicant): What we say is that jurisdiction applies, the convention applies, and then the main legal issue in that respect is whether persons, individuals who climb the fence are actively driven away.
AP1 (Applicant): I think this is the wording of the court when it comes to the definition of what qualifies for an expulsion.
AP1 (Applicant): So if a person climbs the fence, this is, of course, not an expulsion in the meaning of Article 4 of Protocol.
AP1 (Applicant): But when, like in our case and in the present case, when my clients were grabbed, were handcuffed, were forced to leave the country, when Spanish authorities opened the doors and hand them over into the violent situation in Morocco, into the hands of Moroccan officers, I think this is driven away in the sense of Article 4 of Protocol, no matter how high the fence is they climbed.
AP1 (Applicant): The next question, then, the final question was maybe also more in a more general way asked by Judge Potocki.
AP1 (Applicant): And if I understand it correctly, the question was, what is the relevance of access of Article 4 of Protocol in the context of the scenario where an asylum claim could be made?
AP1 (Applicant): And what we explained and what we said in our presentation and our speech earlier today is that, and maybe this also refers to the answer to the first question, the prohibition of collective expulsion should prevent or should allow for the possibility to make an asylum claim.
AP1 (Applicant): And so far, this is fixed.
AP1 (Applicant): But it also allows for other claims to be made, even for persons who don't have an asylum claim, who are not legible under the 51 Convention.
AP1 (Applicant): And for example, maybe the most striking example are minors.
AP1 (Applicant): We see we have minors at the border in Melilla, 12-year-old, 13-year-old, who also climbed the fences and who are also on Spanish territory.
AP1 (Applicant): And maybe they would not have an asylum claim in this narrower sense of the 51 Convention.
AP1 (Applicant): But of course, they have claims, for example, under the Child Right Convention.
AP1 (Applicant): And there is a case pending, in particular, on this very matter of a minor who was in Spain and who was treated in the same way.
AP1 (Applicant): And he could have raised, of course, his rights under the CRC.
AP1 (Applicant): And the same goes for traffic victims.
AP1 (Applicant): And of course, and this is also what I said earlier for claims under Article 3 in relation not to asylum in the country of origin, but also to the situation in the country of destination.
AP1 (Applicant): And this is what this case mainly is about when it comes to Mr. Antti,
AP1 (Applicant): because he had this fear of violence by the Moroccan authorities.
AP1 (Applicant): And he would have raised the situation he faced in Morocco.
AP1 (Applicant): So to conclude, to briefly conclude, and let me just say one short, if I may, one short remark.
AP1 (Applicant): I have not the time now to say more about the government's submissions today.
AP1 (Applicant): And the question of jurisdiction was, for good reason, not raised publicly in this hearing by the Spanish government.
AP1 (Applicant): But I think we have to be clear that what the Spanish government is asking this court for is to allow for an unlawful policy by accepting the existence of lawless zones on its territory at the border, of zones where all rights, even rights under the Child Right Convention under Article 3, are denied and not accessible.
AP1 (Applicant): And such a concept, I think we can all agree on that, is completely adverse to the purpose of the convention.
AP1 (Applicant): And I think we have had this impressive third-party interventions as to the importance of Article 4, Fourth Protocol, in order to allow claims to be assessed, to allow for a procedure, to allow for an identification, at least in order to be able to explain the situation and to raise arguments against an expulsion.
AP1 (Applicant): And by accepting the policy of summary and automatic expulsions, as we have it in the border, in the operational border protocol, which is also not mentioned for good reason by Spain, if we accept this, then we also accept arbitrariness at the border in general and also thus a refoulement.
AP1 (Applicant): Because all these rights, all the non-refoulement rights, are built on the possibility to be claimed and to be enforced before an expulsion.
AP1 (Applicant): But for these claims to materialize within a national framework, a gateway is needed.
AP1 (Applicant): And this gateway exactly is Article 4, Fourth Protocol.
Guido Raimondi (JudgeP): Thank you very much, Mr. Gericke.
Guido Raimondi (JudgeP): I call Mr. Leon Cavero.
GR1 (Government): With the leave of this honorable court, I would like to answer briefly to the questions posed.
GR1 (Government): First of all, we will answer the questions of Judge Jigakse Estatmaya.
GR1 (Government): First of all, we must say that Article 38 of the law of 2009 calls for a future relation to be delivered.
GR1 (Government): But according to Article 22 of our civil code, which regulates the applications of rules in our country, any regulation is still in force, even when the law changes, provided that the regulation is not in opposition to what the new law says.
GR1 (Government): And in this time, the new law doesn't establish anything which is opposed to the articles of the regulation I furnished in its translation into English.
GR1 (Government): And in fact, it is shown by the circular, which was sent by the Ministry of Foreign Affairs to the embassies and consulates, which establishes how the ambassadors have to deal with the coexistence of both rules at the same time, although the law is of higher rank than the regulation, as it can be understood.
GR1 (Government): So that it says that it is the ambassador who has the competency, not the consul, and that the ambassador has to follow a specific proceeding when the claim for asylum is posed in embassies and consulates so that he has to ascertain the seriousness of the claim, first of all, making by his own the investigation and submitting to the superiority, it is said in the circular, which is in the regulation.
GR1 (Government): It is the interministerial commission for asylum and refuge who will examine the file and will deliver a decision which should be subject to judicial review in six months' time.
GR1 (Government): And we have also provided statistics that show that effectively persons come to embassies and consulates and request for this kind of regulation to be applied.
GR1 (Government): Secondly, regarding the presumed difficulties of Sub-Saharans to accede to Beni and Saar offices.
GR1 (Government): First of all, Mr. Boyer has said it today.
GR1 (Government): The CR has said it today, and we have heard attentively what the United Nations High Commission for Refugees and the Commissioner of the Council of Europe has said about this.
GR1 (Government): And they say that it is in the Moroccan territory that it may happen that someone prevents Sub-Saharan from approaching.
GR1 (Government): So Spain is not to blame for things that happen in the Moroccan territory over which we do not have any control, first of all.
GR1 (Government): Secondly, there is a clear explanation of why Sub-Saharans do not request asylum.
GR1 (Government): And it is plainly that this migration is, except of some cases, economic migration.
GR1 (Government): And so they don't have normally legal grounds to request asylum.
GR1 (Government): And that is why the Syrians or people from other nationalities whose countries are under siege and who are in a situation of need, they claim asylum.
GR1 (Government): And that is what is reflected in detailed statistics that we have furnished with our written pleadings before the Grand Chamber and in the relevant annexes there too.
GR1 (Government): On top of that, we would like to say that in the video footage, which is the only evidence we have of the real facts that happened, there is not a single evidence of ill treatment from the part of the Spanish forces or from the part of the Moroccan forces, as that is the only direct evidence we have.
GR1 (Government): And that is why the Chamber decided to admit that part of the claim for being ill-founded.
GR1 (Government): The second questions to be answered are the questions of Judge Payal.
GR1 (Government): Just say if we can establish where the applicants are now.
GR1 (Government): Well, first of all, Mr. Nt, who requested asylum,
GR1 (Government): his lawyer decided not to maintain its judicial review of the denial of asylum, which was backed by two reports of the United Nations High Commissioner of the Refugees.
GR1 (Government): So its counsel was informed and he returned to his home country.
GR1 (Government): It hasn't been reported that he has suffered any damage so far.
GR1 (Government): And in fact, the applicants have not said anything about that.
GR1 (Government): Secondly, regarding Mr. Nt, Mr. Mboye was and is his lawyer
GR1 (Government): since December 2014.
GR1 (Government): And we have just learned from Mr. Karike that the lawyer has
GR1 (Government): advised him not to seek asylum.
GR1 (Government): And in fact, it is Mr. Mboye who has left the decision
GR1 (Government): on expulsion be final, not posing a judicial review.
GR1 (Government): And it seems to be that he has preferred to advise his client to flee and remain at large until now.
GR1 (Government): Regarding the question posed by Mrs. Elosegi, Judge Elosegi,
GR1 (Government): regarding the persons, subsaharans, who had acceded the Benin-Sar border crossing before 13th August 2014, the data regarding this.
GR1 (Government): Well, in our written submission before the grand chamber, we have explained how Spanish legislation always has established that asylum could be requested at border crossings.
GR1 (Government): But before we built in 1st September and we put into function in 1st September 2014 a specific office for international protection in the border crossing of Benin-Sar, what the police did when someone came to the border crossing and asked for asylum is that they were accompanied to the religious police station and there was an internal proceeding on that entry which was completely followed.
GR1 (Government): An example of these proceedings is furnished by Spain to the court because the whole administrative files of Mr. NT
GR1 (Government): and Mr. ND have been furnished.
GR1 (Government): And we must remember precisely paragraph 16 of the applicant's submissions before the grand chamber where I quote, at no point of the current proceedings did the applicant's claim any violation to the convention in relation to these latter events and subsequent procedure.
GR1 (Government): So even the applicant's lawyer considered that internal proceedings are in compliance with the convention.
GR1 (Government): It is not true that they didn't have legal advisor.
GR1 (Government): Mr. Poyer was one of the legal advisors.
GR1 (Government): It is not true that they didn't have interpreter.
GR1 (Government): There was interpretation and there is a translation of transcription of what they said in both proceedings and judicial review could take place.
GR1 (Government): Regarding the following questions relating to Mrs. Selossie,
GR1 (Government): regarding data of persons trying to jump the fence and from which country they came from.
GR1 (Government): Well, the data of the people who were trying to jump unlawfully the fence in 2014 has been detailed in our written submission before the grand chamber.
GR1 (Government): At page 35, paragraph 64, we give a detailed account of the number of persons.
GR1 (Government): Of course, we don't know the nationality of those persons because we prevent entry.
GR1 (Government): We don't have a control of the nationality of those persons.
GR1 (Government): But we consider that there are people from different nationalities that gather together in order to make an unlawful, massive, and violent attacks to the border as it is shown in the video footage we have provided regarding the 13th August attack and attacks that took place later on.
GR1 (Government): So, the next question, excuse me, have been posed by Judge Caracas.
GR1 (Government): About the 10th additional rule of law 2015, establishing a special regime.
GR1 (Government): Well, this law was not applicable in August 2015, but this did not mean that there wasn't law applicable at the date of the facts.