Strasbourg accepts the appeal against the condemnation of Spain for hot returns
Strasbourg condemns Spain for two “hot returns” in Melilla
The Grand Chamber of the European Court of Human Rights (ECHR) has unanimously endorsed the so-called “hot returns” and has revoked the initial conviction to Spain issued a few months ago by one of the Court’s own Chambers.
The sentence, notified this Thursday, affects the expulsions of two sub-Saharan immigrants – a Malian and an Ivorian – who were immediately returned toMoroccoafter jumping the border fence ofMelillain August 2004.
The Great Hall emphasizes that immigrants “put themselves in a situation of illegality” when accessing “unauthorized places” and “resorting to force” and “mass effect”, being a leap of the fence of tens of people.
The ruling adds that the sub-Saharan “decided not to use the existing legal vas” and “irregularly” access Spanish territory. Thus, the magistrates consider that the “absence of an individualized decision” on the return of each of them can be attributed to the fact that they did not use the official channels and, therefore, is a consequence “of their own behavior”.
For this reason, the Court concludes that Spain cannot be considered responsible for the absence in Melilla of a legal channel that would allow them to oppose their return to Morocco. it was one of the essential arguments of the lawsuits filed against Spain, which alleged a violation of the right to effective judicial protection.
The other article allegedly violated by Spain was the one that prohibits the mass expulsions of foreigners. Nor did Spain breach it, according to the Chamber.
The court considers access to embassies
Initially, the ECHR had condemned Spain to compensate each affected person with 5,000 euros, considering that it had violated this ban on mass expulsions. The decision was appealed to the Grand Chamber, which now repeals that criterion.
Although the sentence focuses on two individual cases, the general criteria set forth by the Grand Chamber affect similar assumptions in Ceuta and Melilla. The key to the decision is that17 magistratesthey consider that the immigrants had a possibility of “effective access to Spanish territory” by several vas, the main one of them the border point ofBeni Enzar.
To that were added other possible legal cases: “The plaintiffs also had access to the Spanish embassies and consulates, in which according to the law anyone can file a petition for international protection.” That “real” possibility of making a request to Spain by legal means is what leads the Grand Chamber to endorse the action of Spain.
Not everything has been right to the Spanish Government. The magistrates, for example, consider the returnhots must be considered an “expulsion”, although Spain denied that it was claiming that they never legally entered the country. And the Chamber also believes that one can speak of a “mass” expulsion even if the cases presented to it have been two.
But what is not fulfilled for the conviction is the next step: that this mass expulsion would also take place, without those affected having the option of requesting protection. The legal option exists and it was the immigrants who did not use it, say the magistrates.
The decision will soon have consequences in the Spanish legislation. The Constitutional Court was waiting for the decision ofStrasbourgto resolve the constitutionality of returnshot.
CEAR: “That the PSOE be consistent”
“It is a very disappointing sentence. Evidence of a general ignorance of what international protection means and what really happens at the border.” Thus, after an urgent reading of the 122 pages of the ECHR ruling, the state coordinator of the Legal Service of theSpanish Commission for Refugee Assistance(CEAR) analyze not only the writing of the document, but also the consequences it may have.
“This endorses the Spanish Government to repeat a specific model of border control, unless the Constitutional Court decides against it.” For this reason, the CEAR asks the PSOE that, now that it is in the Government, be “consistent” with what it said about it from the opposition and with what it argued in its appeal of unconstitutionality againstCitizen Security Lawof the PP, the callGag Law.
Specifically, the legal coordinator of the CEAR refers to the additional provision that introduces “the alleged legal coverage for returns in Ceuta and Melilla.” “I think that, due to political coherence and coherence with what he did at the time, beyond the Strasbourg ruling, he should take a step back in the legislative amendment.”
The lawyerDove Faviereshighlights the “incredible” of three of the arguments in the sentence. “The court says that the two immigrants could have legally accessed Spain through procedures at origin or in transit.”
“The sentence does not know the reality”
“In the first case, requesting a work visa at the Spanish consulate inMali, when it is known that there is no visa policy there. In the second, asking for a request to move to Spain at the Spanish embassies, something that would never have been granted, “Favieres explains.
“The sentence speaks of a third possibility: asking for access in the offices authorized in Melilla, which implied the absurdity of having left Morocco and entering Spain, which is precisely what the Security Forces prevented them,” warns the coordinator of the CEAR.
“Not a single sub-Saharan person has been able to access Melilla’s security post to make a request for international protection. The sentence thus shows his lack of knowledge of what actually happens.”
According to the criteria of