The Grand Chamber of the European Court of Human Rights in Strasbourg published a ruling yesterday in which it gives the reason to the Spanish Government to endorse the procedure of hot returns of immigrants who try to cross the border illegally. The ruling, which is final, repeals an earlier decision of the Court in which Spain was condemned and that the Government, then of the Popular Party, decided to appeal. Now the judges of the higher instance consider that Spain did not violate the prohibition of collective expulsions contained in the European Convention on Human Rights or article 13 that includes the right to an effective judicial remedy, because it was the immigrants themselves who “placed themselves themselves in a situation of illegality ».
The jurisprudence felt by this decision can have important repercussions for Spanish and European legislation on migration at a time when the issue is especially sensitive. The case had begun in 2104 when two Africans who were part of a group were intercepted trying to jump the fence of Melilla and returned immediately to Morocco without even being identified. In 2017, the Court said that their rights had been violated and therefore they condemned the Spanish Government to indemnify them with the sum of 5,000 euros to each. Instead of merely complying with the sentence and ignoring its effects in subsequent cases, the executive, then chaired by Mariano Rajoy, decided to appeal it to the Grand Chamber, despite the risk that the new trial would have more complex consequences for management policy. of the border in similar cases. If he had not done so, he could have faced an avalanche of similar claims. The known sentence now gives the reason and justifies the so-called hot expulsions, that is, carried out at the same time that it is found that they are trying to penetrate Spanish territory.
In their judgment, adopted unanimously, the judges now consider that the plaintiffs “placed themselves in a situation of illegality when they deliberately tried, on August 13, 2014, to enter Spain crossing the protection of the Melilla border, in unauthorized places and as part of a large group, taking advantage of the mass effect and using force ». That is to say, the judges consider that the plaintiffs actually “decided not to use the existing legal channels that allow regular access to Spanish territory” so “assuming they wanted to assert their rights under the Convention” they should have used the channels established by law to enter Spain. Therefore, the fact that they have not benefited from these rights “is a consequence of their own behavior.”
In the ruling, the judges have taken into account that “in the proceedings before the Grand Chamber, the applicants did not claim to have attempted to enter Spanish territory by legal means” and that “it was only during the hearing before the Grand Chamber when they revealed having tried to approach the Beni-Enzar post »where the dependencies are located where they could have introduced their asylum request, but claimed to have been prosecuted by Moroccan officials. In that case, “regardless of the doubts raised by this claim introduced very late in the procedure,” the Court points out that “at no time had the plaintiffs claimed that the difficulties encountered were the responsibility of the Spanish authorities.
The Court also considers that Spanish law already provides for the possibility of appealing against expulsion orders at the border, but for that purpose the applicants should have respected the rules for filing that appeal.
It is also denied that it is a collective expulsion. In fact, the Court concludes that the absence of an individual processing of the expulsion was a direct consequence of the behavior of the applicants themselves, “who became illegal when crossing the border protection system of Melilla in unauthorized places and within of a large group »so that« the defendant State (Spain) cannot be held responsible for the absence of a legal remedy ».
Although the sentence was passed unanimously, two of the judges have recorded individual opinions, one in support of the criteria set out in the sentence and a second with a “partially disagreeing” opinion. .