This Paper examines the ‘ND and NT v Spain’ judgment by the European Court of Human Rights (EtCHR) of 13 February 2020. The Grand Chamber of the Strasbourg Court concluded that expedited expulsions to Morocco (pushbacks or âhot returnsâ) by Spanish authorities at the border fences in Melilla did not amount to a violation of the prohibition of collective expulsions under Article 4 Protocol 4 of the European Convention of Human Rights (ECHR). Counterintuitively, the Courtâs ruling is not a carte blanche for states to engage in automatic expulsions or push backs of irregular immigrants and asylum seekers at EU external borders. The Grand Chamber has confirmed that the notion of expulsion for ECHR purposes covers non-admission border management policies, and it applies to every individual irrespective of seeking asylum or not. It has also held that governments must not instrumentally frame certain parts of their territory through law as ânon-territoryâ to escape from their ECHR obligations in the context of border policies. The Grand Chamber has also demanded that States provide genuine and effective access to legal entry mechanisms for purposes of asylum and employment. The ND and NT v Spain judgement is, however, fraught with legal inconsistencies and factual inaccuracies. It denies justice to voiceless victims of human rights violations. The rulingâs inconsistent legal argumentation leaves crucial nuances to avoid arbitrariness and rule of law violations in statesâ border policies. By focusing on the individualsâ own conduct instead of the Spanish authoritiesâ compliance with the ECHR, the judgement displaces the individual from the heart towards the periphery of the ECHR system. It wrongly applies an âown conduct doctrineâ to human rights which are absolute in nature and accept no exception. The judgesâ arguments are also factually wrong, chiefly in respect of the practical accessibility by the applicants to legal channels for admission to Spain. The Grand Chamberâs choice to first assess whether the individual is worthy of human rights contradicts Article 1 ECHR and the Strasbourg Court mandate to impartially and independently supervise States partiesâ compliance with everyoneâs human rights within their jurisdiction. The ruling provides an inequivalent level of human rights calling for lower protection standards in contradiction to those required by United Nations human rights bodies. It is also incompatible with the Spanish governmentâs obligations under EU law to comply with human rights in border control and surveillance policies, and the fundamental right to asylum.
This is an abstract of a working paper published by Sergio Carrera.