CASE OF N.D. AND N.T. v. SPAIN
Hearing: N.D. and N.T. v. Spain (no. 8675/15) (Grand Chamber hearing, 2018-09-26 00:00:00)
Application no.: 8675/15
Document type: GRANDCHAMBER
Document date: 2020-02-13 00:00:00
ECLI: ECLI:CE:ECHR:2020:0213JUD000867515
Respondent state: ESP
Articles of the Convention: 1;13;13+P4-4;34;35;35-1;35-3-a;37;37-1;37-1-b;37-1-c;P4-4
Judges: Alena Poláčková;Aleš Pejchal;André Potocki;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Dmitry Dedov;Ganna Yudkivska;Georgios A. Serghides;Helen Keller;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Mārtiņš Mits;Pauliine Koskelo;Robert Spano;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Pere Pastor Vilanova;María Elósegui;Tim Eicke
Represented by: GERICKE C. ; BOYE G.
Issue: Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) ; Law 12/2009 of 30 October 2009 on asylum and subsidiary protection ; Royal Decree 203/1995 of 10 February 1995 (implementing regulations for the Law on asylum) ; Royal Decree 557/2011 of 20 April 2011 (implementing regulations for the LOEX) ; The Guardia Civil border control operations protocol of 26 February 2014 (as applicable at the relevant time), which introduced the term “operational border” ; Circular letter to all Spanish ambassadors of 20 November 2009 ; Annual report of the Spanish Ombudsperson of 2005 and 2013 ; Articles 2 and 6 from the European Union Treaty ; Articles 67, 72, 77, 78, and 79 of the Treaty on the Functioning of the European Union ; Articles 4, 18, 19 and 47 of the Charter of Fundamental Rights of the European Union ; Agreement on the accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders [between the contracting parties] ; Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) ; Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals (“the Return Directive”) ; Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status ; Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) ; European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI))
Strasbourg case-law cited: Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94;Airey v. Ireland, 9 October 1979, § 24, Series A no. 32;Al Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 134, 21 June 2016;Al Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, ECHR 2011;Ali v. Switzerland, 5 August 1998, §§ 30-33, Reports of Judgments and Decisions 1998-V;Allen v. the United Kingdom [GC], no. 25424/09, § 95, ECHR 2013;Amuur v. France, 25 June 1996, § 43, Reports 1996 III;Andric v. Sweden (dec.), no. 45917/99, 23 February 1999;Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II;Baka v. Hungary [GC], no. 20261/12, § 149, 23 June 2016;Banković and Others v. Belgium and Others (dec.), [GC], no. 52207/99, ECHR 2001-XII;Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, ECHR 2005-VIII (extracts);Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI;Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, § 23, ECHR 2014;Davydov v. Estonia (dec.), no. 16387/03, 31 May 2005;Del Río Prada v. Spain [GC], no. 42750/09, § 81, ECHR 2013;Dritsas and Others v. Italy (dec.), no. 2344/02, 1 February 2011;El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09;F.G. v. Sweden, [GC], no. 43611/11, §§ 81-82, ECHR 2016;Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 54-58, ECHR 2007 II;Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts);Ghulami v. France (dec.), no. 45302/05, 7 April 2009;Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, 29 January 2019;Hayd v. the Netherlands (dec.), no. 30880/10, 29 November 2011;Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012;Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, 13 September 2016;Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 VII;Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 123-28, 21 November 2019;J.K. and Others v. Sweden, no. 59166/12, §§ 78 and 79, 4 June 2015;Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013;Kebe and Others v. Ukraine, no. 12552/12, § 87, 12 January 2017;Khlaifia and Others v. Italy [GC], no. 16483/12, 15 December 2016;Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005 XI;Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310;M.A. and Others v. Lithuania, no. 59793/17, 11 December 2018;M.A. v. Cyprus, no. 41872/10, ECHR 2013 (extracts);M.H. v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014;M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015;M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 201;Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999-I;Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009;N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008;Paposhvili v. Belgium, [GC], no. 41738/10, 13 December 2016;Ramzy v. the Netherlands (striking out), no. 25424/05, §§ 64-66, 20 July 2010;Saadi v. Italy [GC], no. 37201/06, ECHR 2008;Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014;Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161;Sultani v. France, no. 45223/05, ECHR 2007-IV (extracts);United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I
External sources: Guidelines of the Committee of Ministers of the Council of Europe on Forced Return, adopted on 4 May 2005;Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on their visit to Spain in July 2014 (published on 9 April 2015);The 2015 annual activity report by the Commissioner for Human Rights of the Council of Europe;Report of the fact-finding mission by the Special Representative of the Secretary General of the Council of Europe on migration and refugees, to Spain, March 2018 (SG/Inf(2018)25);Resolution 2299 (2019) of the Parliamentary Assembly of the Council of Europe on the pushback policies and practice in Council of Europe member States;Charter of the United Nations (UN Charter), signed on 26 June 1945 in San Francisco;Articles 27, 31 and 32 of the Vienna Convention on the Law of Treaties of 23 May 1969;Geneva Convention of 28 July 1951 relating to the Status of Refugees;Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (UNCAT);Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967 (Resolution 2312 (XXII));Draft Articles on the Expulsion of Aliens adopted by the International Law Commission at their sixty-sixth session (2014) of which the United Nations General Assembly took note (Resolution A/RES/69/119 of 10 December 2014);Second report on the expulsion of aliens, dated 20 July 2006 (Document A/CN.4/573), by Mr Maurice Kamto, Special Rapporteur;Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme 1975 – 2017;Views adopted by the Committee on the Rights of the Child on 12 February 2019 under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, concerning communication No. 4/2016
Conclusion: Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 37-1 - Respect for human rights;Article 37-1-b - Matter resolved;Article 37-1-c - Continued examination not justified);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens)
Separate opinion: TRUE