17 February 2020
"The European court of human rights has been accused of “completely ignoring the reality” along the continent’s borders after it ruled that Spain acted lawfully when it summarily deported two people who tried to scale the border fence separating Morocco from Spanish territory six years ago.
The Strasbourg court announced its decision on Thursday in the case brought by the two men, who are from Mali and Ivory Coast.
The men, known for legal reasons as ND and NT, were among hundreds who climbed the fences that surround Spain’s north African enclave of Melilla on 13 August 2014.
After spending several hours perched on top of the inner fence, they climbed down and were handcuffed by Spanish Guardia Civil officers and handed over to Moroccan authorities.
The pair say they were never given a chance to explain their personal circumstances or receive help from lawyers or interpreters.
But the court found there had been no violation of the European convention on human rights because the men had attempted to enter Spanish territory in an “unauthorised” manner."
See: European court under fire for backing Spain's express deportations (The Guardian, link)
Maximilian Pichl and Dana Schulz comment in a post for Verfassungsblog (emphasis added):
"This judgment is a shock. What is shocking is much more than the finding that no violation of Article 4 of Protocol No. 4 has occurred, although this finding is wrong. The court draws on a language of “unlawfulness” that serves, from Canberra to Washington DC, as a tool for depriving persons of rights. The judgement is a significant setback in the jurisprudence of the Court. This judgment can hardly be read other than the Court making enormous concessions to the pressure by European states, which since the summer of 2015 in the majority pursue a policy of expanding the externalization of migration control and carrying out ever more repressive forms of push-backs at their land borders (e.g. Greece, Hungary and Croatia). A majority of the judges may have thought that the Court could lose support among the convention states, if the judgment in the case of N.D. and N.T. became a human-rights based correction of the EU border regime. Yet with this judgment, in turn, the Court lost credibility as an effective defender of human rights in times of crisis. When we allow unlawfulness to justify rightlessness, the European project is in severe danger."
See: “Unlawful” may not mean rightless. (Verfassungsblog, link)
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