Land pushbacks at the Moroccan-Spanish border: from illegal State practice to endorsement by the European Court of Human Rights. A turn of events “made in Spain”

ECtHR – Art. 4 Additional Protocol No. 4 – Prohibition of collective expulsion – Pushbacks – Hot returns – Ceuta – Melilla – N.D. and N.T. v. Spain – Bottom-up influence

The jurisprudential U-turn in the case of N.D. and N.T. v. Spain was heavily criticised, among other things, for its lack of predictability. Indeed, the ECtHR was accused in this case of inventing all sorts of new limitations to Article 4 of Protocol No. 4. However, as I argue in this paper, these new limitations may not have been invented by the ECtHR, but rather drawn from Spain—the first State in the Council of Europe to implement and to legalise land pushbacks, and also the one which convinced the ECtHR to create an exception to Article 4 of Protocol No. 4. Far from what may seem at first sight, this is a crucial—and problematic—difference. Indeed, it would suggest an atypical “bottom-up” influence from the State level to the ECtHR which would raise, in turn, a series of substantive and methodological issues with regards to the ECHR. This is an avenue worth exploring because it may cast a new light on the case of N.D. and N.T. and help fully grasp the real extent of the Grand Chamber’s U-turn. Therefore, the question explored is structured in three parts: Part I outlines the relevant Spanish framework; Part II discusses the bottom-up influence of this framework on N.D. and N.T. from a substantive point of view; Part III approaches it from a methodological point of view. The paper concludes with some final remarks on this influence from below.

Clara Bosch March, PhD Student & Hardiman Scholar (University of Galway, Ireland)

 

A. Introduction

Few jurisprudential U-turns in the history of the European Court of Human Rights (“ECtHR” or “the Court”) have triggered as much criticism as the one in the case of N.D. and N.T. v. Spain. This case, adjudged by the Chamber (Third Section) in October 2017 and then overruled by the Grand Chamber in February 2020, was the first where the Court was called on to pronounce itself on the “burning issue” of land pushbacks. These are described as “measures taken by States […] which result in migrants, including asylum seekers, being summarily forced back, without an individual assessment of their human rights protection needs, to the country or territory […] from where they attempted to cross or crossed an international border”.

The case originated from the applications of two Sub-Saharan individuals who claimed to have been subjected to a collective expulsion of aliens such as those prohibited by Article 4 of Protocol No. 4 of the European Convention on Human Rights (ECHR) on 13 August 2014. Indeed, on that day, the applicants tried to gain irregular access to Spain from Morocco by jumping the Melilla fence together with some other 600 individuals. In the process, they were intercepted by Spanish officials, handcuffed and immediately handed over to the Moroccan authorities, who were waiting on the other side of the fence. Neither did they undergo an identification procedure or have the opportunity to put forward any reasons against their expulsion, never mind to be assisted by lawyers and interpreters.

In a first judgment, the Chamber decided in favour of the applicants, unanimously ruling that Spain had violated Article 4 of Protocol No. 4 ECHR. It was an applauded but also an expected judgment. Indeed, the facts of the case were so “straightforward” that it would have been difficult to picture a different outcome. However, the Spanish Government requested a referral to the Grand Chamber under Article 43 ECHR. This is a provision under which a party may, under exceptional circumstances, request a judgment by the Grand Chamber “if [a] case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance”. The panel of judges of the ECtHR which was in charge of assessing the requests made by the parties under Article 43 ECHR considered that this was the case, and accepted the request to refer the application to the Grand Chamber. In fact, the later noted that there were “important issues […] at stake […], particularly concerning the interpretation of the scope and requirements of Article 4 of Protocol No. 4 with regard to migrants who attempt to enter a Contracting State in an unauthorised manner by taking advantage of their large numbers”. This led the Grand Chamber to hear the case. The outcome was another ruling by unanimity, but surprisingly in the opposite direction: Spain had not violated Article 4 of Protocol No. 4.

This striking U-turn was met with extraordinary “shock” for two reasons. On the one hand, it significantly curtailed the rights of migrants attempting to irregularly enter into the territory of a Contracting State by creating a brand-new exception to Article 4 of Protocol No. 4. Until then, this provision was supposed to be a procedural guarantee that applied to all non-citizens coming under the jurisdiction of a State, regardless of the circumstances of entry. However, after the Grand Chamber’s reversal of N.D. and N.T., the protection of this provision became contingent on three criteria (namely, the conduct of the migrants, the existence of effective channels of legal entry, and the cogent reasons for not using the latter). On the other hand, and most importantly for the purposes of this paper, this U-turn was impossible to predict based on the ECtHR’s case-law. Indeed, the problem was not so much that the ECtHR departed from its own (established or expected) jurisprudence, but that it did so in the absence of compelling legal grounds that justified it. In fact, none of the criteria that led to the U-turn in N.D. and N.T. existed previously in the ECtHR’s jurisprudence (with the exception, perhaps, of the conduct, which had been used before, although only twice and in a totally different way).[1] For this reason, the Grand Chamber was accused of “inventing” new limitations to Article 4 of Protocol No. 4 in order to reach its judgment.

Of course, as I have argued elsewhere, the fact that the ECtHR had to come up with such an awkward argumentation based on new (or repurposed) criteria could imply that “there were not enough legal grounds” to back up that U-turn. The creative effort of the Grand Chamber could only be, hence, interpreted as an attempt to produce a suitable legal reasoning to match a predetermined outcome. This is certainly striking, as I have also explained there, because it would mean that “it was not the legal reasoning which led to the outcome, but the outcome which led to the reasoning”. However, the conclusion that the Grand Chamber “invented” such limitations to Article 4 of Protocol No. 4 simply because they have no basis in the previous ECtHR case-law may not be entirely accurate. Indeed, as I contend in this paper, these limitations may not have been invented by the ECtHR, but rather drawn from the law and practice of Spain—interestingly enough, the first State in the Council of Europe to implement land pushbacks, as well as the first to legalise them.

This is a crucial—and problematic—difference. Indeed, it would suggest an atypical “bottom-up” influence from the State level to the ECtHR which would raise, in turn, a series of substantive and methodological issues. As such, it is an avenue worth exploring because it may cast a new light on the case of N.D. and N.T. and help fully grasp the real extent of the Grand Chamber’s U-turn. For this reason, it is the question that I examine in this paper, which I have divided in three parts: Part I outlines the relevant Spanish background and framework in terms of law and practice; Part II discusses the bottom-up influence of this framework on the Grand Chamber’s ruling in N.D. and N.T. from a substantive point of view; Part III approaches this bottom-up influence from a methodological point of view. The paper concludes with some final remarks on the implications of this influence from below.

B. Discussion

1. Spanish law and practice

- Background and origins of a dubious State practice

The only land borders of the entire European Union—and, by extension, of the Council of Europe—with the African continent are located in Ceuta and Melilla, two small Spanish cities of around 83,000 inhabitants each located in the north of Morocco. Historically, since the incorporation of these cities to the Spanish Crown around the 16^th century, these borders had been totally permeable to transit.[2] However, after the country’s accession to the European Union (1986) and to the Schengen area (1991), Spain was “compelled” to seal them against irregular migration. The purpose was not so much to contain the irregular entry of Moroccans, but of nationals from all over Africa—especially Sub-Saharans—who sought to clandestinely reach Spain via Morocco. This resulted in the construction of two fences, one around Ceuta and the other one around Melilla, at the end of the 1990s.

The creation of the fences gave rise to a new “problem”—how to proceed when a migrant was apprehended while trying to jump them. Indeed, the attempts to do so emerged almost simultaneously with the finalisation of the construction works at the end of 1998. As it came to light much later, it seems that it was around 1999 that the Spanish authorities started to informally and immediately push migrants back to Morocco. The practice continued over the years and grew into a widespread, systematic one in 2005 as a response to the first mass, coordinated storms of the fences where several hundred individuals attempted to irregularly overcome them at the same time (examples here, here, and here). However, at that moment, no one really knew what was happening at the fences. Indeed, land pushbacks were a clandestine State practice. This practice is commonly known in Spanish as “devoluciones en caliente” (hot returns), and consists in immediately returning migrants as they attempt to cross, or have just crossed, the border, without even conducting an identification procedure.[3] Over time, as the practice intensified along with the number of irregular arrivals, it became increasingly difficult to conceal it, and civil society started denouncing it. Yet, the Spanish authorities systematically denied any accusation in this regard. Eventually—not before 2014, though—they admitted that pushbacks could be happening, but only in “isolated cases”. However, they tried to keep them secret for as long as they could, for example, by denying journalists access to the area where they were taking place.

- Between the grey area, illegality and legalisation

For around 15 years, between 1999 and 2014, pushbacks at the fences were a de facto State practice not regulated in Spanish law. The domestic immigration law then in force established three different procedures for the removal of migrants. All of them—and, in particular, one which specifically governed the removal of migrants apprehended while entering into the country irregularly—included, at least, an identification procedure, free legal assistance and the services of an interpreter whenever needed. The Spanish law did not, hence, foresee the possibility of informally removing individuals without any procedural guarantee, e.g., by opening the nearest gate of the fence in the case of Ceuta and Melilla. However, it did not rule it out explicitly either. Therefore, it could be argued that the practice—at the very best—fell within a grey legal area, at least initially.[4]

In fact, until 2009, the practice of the Spanish authorities was not contrary to Protocol No. 4 ECHR either—not because it did not violate the prohibition on the collective expulsion of aliens (which it presumably did), but because Spain was not a party to this instrument. In fact, Spain signed the Protocol in 1978, shortly after the country’s accession to both the Council of Europe and the ECHR in 1977, but held off on its ratification for 31 years. Therefore, for a very long time, Spain could not have even been brought before the ECtHR for a violation of Article 4 even if it had conducted a practice clearly contrary to it. However, the situation completely changed in 2009, when Spain ratified Protocol No. 4 but failed to discontinue the practice. On the contrary, the storms at the fences became increasingly frequent and violent over the following years, and so did the response of the Spanish officials when repelling the illegal entries. Still, the practice remained clandestine and denied by the authorities—with the difference that it was arguably no longer in a legal grey area, if it ever was, but clearly illegal.

From the above, it appears that Spain was able to implement pushbacks in a clandestine manner for at least 15 years. However, some tragic facts that took place on 6 February 2014 unexpectedly changed the course of events. That morning, a group of around 90 individuals attempted to cross from Morocco to Ceuta, not by jumping the fence, but by swimming alongside it.[5] The Spanish authorities tried to discourage their arrival by using abundant antiriot material. The operation concluded with 15 of the migrants dead and with the 23 survivors who arrived on the Spanish side of the beach being de facto and immediately returned to the Moroccan officers, from whom “they had escaped” and who were “claiming them back”, as stated by the then Spanish Minister of Interior. These events, known as the tragedy of “El Tarajal”, attracted so much public attention that they made it impossible for the Spanish Executive to keep denying the practice. This prompted an unexpected reaction from the Spanish Executive, who, instead of discontinuing it, decided to undertake a frenetic “headlong rush” which led them to (1) justify it, (2) “own” it publically, and (3) legalise it.

- Analysis of the Spanish law on pushbacks

Pushbacks were legalised roughly one year later, in March 2015, under the name of “rejections at the border”. They entered the Spanish legal order through a provision consisting in three paragraphs, which are worth examining. The first one read as follows:

“1. [a]liens attempting to penetrate the border containment structures in order to cross the border unlawfully, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their unlawful entry into Spain.” [6]

This paragraph said, amongst others, two things. The first is that the practice would be geographically restricted to the fences of Ceuta and Melilla—as if that made it less illegal. Indeed, if Article 4 of Protocol No. 4 was an “absolute” prohibition, as stated by the Grand Chamber in the decision as to the admissibility of Slivenko and Others v. Latvia in 2002,[7] such an exception would not have been allowed. In fact, any exception to Article 4 of Protocol No. 4 would have been, by definition, contrary to the ECHR, insofar as absolute rights (be they procedural or substantive) admit no limitation or balancing whatsoever against other rights or interests. This would apply even if it was a restricted or occasional exception—such as limiting it to the bare 20 km of the land border of Ceuta and Melilla—and justified—e.g., based on the “geographical singularity” of these cities. It is true that the ECtHR has not been too revealing regarding this alleged “absolute character” ever since and that, in fact, the subsequent treatment of Article 4 of Protocol No. 4 by the ECtHR (inter alia, in N.D. and N.T.) may suggest the contrary. However, it is out of the scope of this paper to examine this question in further detail. Suffice it to say, for the purposes of this analysis, that the Spanish law was creating an exception initially not foreseen in Article 4 of Protocol No. 4. The second thing is that the rejections at the border would target those apprehended while jumping the fences to cross the border irregularly. It must be said, however, that former versions of this paragraph that were proposed before the Spanish Congress were more explicit (or, perhaps, more specific). Indeed, they referred to “the unauthorised crossing of the border in a clandestine, violent or flagrant manner” (first version) and “as a group” (second version).

The mere intent of legalising this practice—since the very moment in which the first version was tabled in late 2014—triggered an extraordinary wave of criticism coming from all sectors of society, including 130 NGOs, the Spanish Ombudswoman, and the Catholic Church, as well as the European Parliament, the UNHCR, and the Council of Europe. None of this criticism seemed to discourage the Spanish Executive from pursuing its roadmap towards the legalisation of pushbacks. However, the social and institutional pressure triggered the inclusion of two additional paragraphs after this one, not initially foreseen, intended as human rights safeguards. The first read:

“2. [t]heir return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain.”

At first sight, this addendum created high expectations (see some positive reactions here and here). Nonetheless, it sufficed to reflect on its content to realise that it was “contradictory” by itself. Indeed, the provision at hand was, arguably, legalising a practice inherently contrary to Article 4 of Protocol No. 4 (at least, as interpreted by the ECtHR at that moment). Moreover, just like in any collective expulsion, there was no way to know in advance whether, in practice, the prohibition of non-refoulment was being violated too during a rejection at the border.[8] Therefore, the guarantee introduced in this new paragraph was, to say the least, quite a challenging one to comply with, especially considering that no guidance was provided on how to do it—assuming it was possible at all. Indeed, for the practice to be carried out in compliance with international rules, it should arguably involve, amongst others, an identification procedure, legal assistance and access to an interpreter, as requested by the UNHCR. In other words, to be compliant with international rules, rejections at the border should not be rejections at the border.[9] Regardless, the following paragraph further specified that:

“3. [a]pplications for international protection shall be submitted in the places provided for that purpose at the border crossings; the procedure shall conform to the standards laid down concerning international protection.”

As such, this last paragraph emphasised the possibility of seeking asylum at the border. This provision was accompanied, in practice, by the opening of two border asylum offices, one in Ceuta and one in Melilla,[10] both in March 2015. By doing this, the Spanish Government reportedly wished to highlight Spain’s commitment to migrants’ human rights and, in particular, to asylum. This provision did not mention, however, that the Ceuta office would barely be operative after its inauguration,[11] and that the Melilla one—as revealed during the hearing of N.D. and N.T.—would not be accessible in practice for Sub-Saharan migrants. Still, even assuming all migrants (including Sub-Saharans) had a genuine possibility of seeking asylum at these border offices, that would still not justify—or make up for—an earlier collective expulsion carried out elsewhere at the border.

2. Bottom-up influence (substantive level)

- Parallels between the Spanish law and N.D. and N.T. v. Spain

If we take a closer look at the provision above—which, as stated earlier, was introduced in Spanish law in 2015—and we compare it with the Grand Chamber’s assessment in N.D. and N.T. that came out 5 years later, it is possible to draw some parallels between both. In fact, it is possible to identify certain phrases originally used in Spanish law being reproduced, almost word by word, by the ECtHR. Indeed, paragraph 1 of the Spanish law, which reads:

“1. [a]liens attempting to penetrate the border containment structures in order to cross the border unlawfully, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their unlawful entry into Spain” (emphasis added) [prior versions: “the unauthorised crossing of the border in a clandestine, violent or flagrant manner” and “as a group” (emphasis added)],

translated into the Court’s assessment in N.D. and N.T. as:

“201. [i]n the Court’s view, the same principle must also apply to situations in which the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety […]” (emphasis added).

On the other hand, paragraph 3 of the Spanish law, which establishes that:

“3. [a]pplications for international protection shall be submitted in the places provided for that purpose at the border crossings; the procedure shall conform to the standards laid down concerning international protection” (emphasis added),

translated into the necessity for the ECtHR to look at whether the Contracting State had provided channels of legal entry and, as chance would have it, border procedures:

“201. […] In this context, however, […] the Court will, importantly, take account of whether […] the respondent State provided genuine and effective access to means of legal entry, in particular border procedures […]” (emphasis added).

All the above allowed the Grand Chamber to conclude, in paragraph 231 of the judgment, that “it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group’s large numbers and using force” (the culpable conduct), that “[t]hey did not make use of the existing legal procedures for gaining lawful entry to Spanish territory” (the existence of genuine channels of legal entry) and that, as a consequence, “there ha[d] been no violation of Article 4 of Protocol No. 4 ECHR”.

Last but not least, the ECtHR arguably relied on the disclaimer present in paragraph 2 of the Spanish law:

“2. [t]heir return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain” (emphasis added)

and turned it into a similar—and, arguably, equally evasive—one:

“232. [h]owever, it should be specified that this finding does not call into question […] the obligation […] for the Contracting States to protect their borders […] in a manner which complies with the Convention guarantees, and in particular with the obligation of non-refoulement […]” (emphasis added).

- Substantive issues with regards to the ECHR

In light of the above, it seems difficult to maintain that the ECtHR “invented” in the abstract the new limitations to Article 4 of Protocol No. 4—namely, the culpable conduct and the existence of genuine channels of legal entry—as well as the obligation to nonetheless comply with the ECHR, in particular with Article 3. Indeed, it appears that these requirements were drawn, to a great extent, from Spanish law and practice. This is certainly striking because it means that the first State of the Council of Europe to implement and legalise land pushbacks was also the one which, with a domestic framework clearly contrary to Article 4 of Protocol No. 4, convinced the ECtHR to drastically change its approach towards this provision. However, this is all the more puzzling from a substantive point of view. Indeed, the bottom-up race from the Spanish domestic framework to the ECtHR judgment in N.D. and N.T. may raise substantive issues regarding, at least, two ECHR articles.

The first one is Article 1 ECHR. This article dictates, amongst other things, that the State in question must make sure that “its legislation is consistent with the Convention”. Of course, this implies that national laws should evolve in accordance with the ECHR and the ECtHR jurisprudence, and not the other way round. In this case, however, the opposite occurred. This is certainly something infrequent—if it ever happened at all—and all the more surprising coming from Spain. Indeed, in Spain, the ECHR and its Protocols are hierarchically superior to domestic law, falling only below the Spanish Constitution. This means, basically, that no Spanish law can be contrary to the ECHR or its Protocols, as interpreted by the ECtHR. As such, whenever the ECtHR has found in the past that Spanish law was contrary to the ECHR, Spain has amended the offending legislation in order to bring it into conformity with the ECHR. Indeed, Spain has even modified its domestic laws following ECtHR cases concerning other States.[12]

However, when it came to land pushbacks, the situation was totally different. Indeed, Spain did not, in the first place, bring its State practice in conformity with Protocol No. 4 (i.e., it did not discontinue the hot returns at the Ceuta and Melilla borders) before or upon ratification in 2009. What is more, it created law arguably contrary to the ECHR by legalising the practice in 2015, once it was already a party to Protocol No. 4. However, the most striking was when, at a later stage, the Grand Chamber came to hear the case of N.D. and N.T. and did not compel Spain to align its laws with the ECHR. On the contrary, it created jurisprudence consistent with Spanish law.

In fact, by doing so, the ECtHR carved an exception to the guarantees provided by Article 4 of Protocol No. 4 under certain circumstances. As such, the U-turn in N.D. and N.T. may also be problematic with regard to Article 53 ECHR. This provision, intended as a “safeguard for existing human rights”, is supposed to ensure that the ECHR is not used as a pretext to lower the level of protection recognised elsewhere (e.g., in the domestic laws of a State or in another international instrument). At the same time, the level of protection guaranteed by the ECHR is supposed to be the “minimum standard” across States. As such, it would arguably be not possible for States to go below it—let alone for the ECtHR. However, in this case, not only did the ECtHR not require Spain to bring up its protection level—which was arguably below what was required until then—but actually lowered the ECHR protection standard, bringing it down to the State level.[13]

3. Bottom-up influence (methodological level)

Let us analyse now whether the bottom-up influence of Spain on N.D. and N.T. is also problematic from a legal methodology point of view. In order to do that, we will focus on the two main contributions that this U-turn has arguably made to the ECtHR jurisprudence—i.e., creating an exception to Article 4 of Protocol No. 4 and influencing the later jurisprudence around this provision—and try to make sense out of them in light of two of the main interpretative tools of the ECtHR: the margin of appreciation doctrine and the evolutive interpretation.

- Margin of appreciation

The first contribution of this U-turn, the creation of an exception to Article 4 of Protocol No. 4, invites to examine it by reference to the doctrine of the margin of appreciation (see references in this regard here and here). Indeed, this is a flexible doctrine, closely linked to the principle of subsidiarity, that the ECtHR often uses to justify “restrictions on rights”.[14] Essentially, this doctrine rests upon the presumption that States are better placed than the ECtHR to assess their own domestic realities and to strike a balance amongst ECHR rights, or between ECHR rights and other interests. In this case, it could be argued that the ECtHR might have relied on interests such as border management or State security to leave the case up to Spain’s margin of appreciation.[15] The Grand Chamber did not make any explicit mention of this doctrine in its ruling. However, as pointed out here, the Grand Chamber seemed to “blindly” apply it when accepting the Spanish Government’s argument that the applicants had “genuine and effective access to Spanish territory” and “to Spanish embassies and consulates where, under Spanish law, anyone could submit a claim for international protection” (N.D. and N.T., para. 222), in spite of strong evidence on the contrary. This argument was, in fact, what allowed the Grand Chamber to create the exception to Article 4 of Protocol No. 4, and to rule that no violation had taken place. However, there are arguably a couple of reasons why the exception to Article 4 of Protocol No. 4 could not easily be framed in the doctrine of margin of appreciation.

The first reason is the way in which the doctrine would have been applied. Indeed, when presented with a margin of appreciation case, the ECtHR usually proceeds as follows:

(1) it establishes the (personal and substantive) scope of the rights affected,

(2) it analyses whether there has been an “interference” in the former, and

(3) it assesses the necessity or reasonableness of such interference through the proportionality test.

It is only in this third step—and not before—that the margin of appreciation doctrine often comes into play,[16] in order to establish whether the interference in the scope of the right was justified or not. As such, the scope of the rights itself “remains unaffected by the doctrine”. However, this is not what happened in N.D. and N.T. Indeed, in this case, the Grand Chamber created an exception to Article 4 of Protocol No. 4 straight away in the first step and did not proceed further. In this way, the ECtHR did not find any “justified interference” in Article 4 of Protocol No. 4, first and foremost, because it found no interference at all.

The second reason is related to the outreach of N.D. and N.T. Certainly, it could be argued that the repercussions of this judgment were unusually strong for a margin of appreciation case. Indeed, unlike in regular margin of appreciation cases, the ECtHR did not limit itself to rule in favour of the State by recognising it did not exceed its margin of appreciation when limiting a right on a particular instance. Instead, the ECtHR bought Spain’s arguments, turned them into sort of a protocol (the “culpable conduct test”) and applied it to subsequent Article 4 of Protocol No. 4 cases originating in other States (see, e.g., here, here, and here). These reasons arguably suffice to conclude that, if the U-turn in N.D. and N.T. were to be regarded as an exercise of the margin of appreciation doctrine, it could only be considered, at most, as a sui generis one.

- Evolutive interpretation

The second contribution of N.D. and N.T. to the ECtHR jurisprudence was the evolution—understood simply as a change—of the interpretation of Article 4 of Protocol No. 4. Hence, it could be analysed, in principle, through the lens of the evolutive interpretation. This approach is based on the idea that the ECHR is a “living instrument” and allows the ECtHR to adapt it to “contemporary standards”. Indeed, there are “two primary ways” in which it may be used, and the jurisprudential U-turn in N.D. and N.T. could arguably fit in both.

The first would be to amend the meaning initially given to a provision by its drafters or the ECtHR. In this sense, it could be considered that Article 4 of Protocol No. 4 was drafted and formerly interpreted as including no exceptions, but that the ECtHR decided to attach a series of limitations to it at some point in view of the “new challenges” faced by States when it comes to migration. The second would consist in adapting a provision to circumstances that did not exist or could not be foreseen at the time of drafting, and for which there is no “settled understanding”. In this sense, it could be argued that N.D. and N.T. was the first case where the ECtHR dealt with land pushbacks—a phenomenon which certainly did not exist when the provision was adopted in 1963—and that, hence, it needed to adapt Article 4 of Protocol No. 4 to new scenarios. It would not be the first time, after all, that the ECtHR used the evolutive interpretation to adapt Article 4 of Protocol No. 4 to contemporary situations.[17] Actually, the procedural guarantees that the ECtHR deduces from Article 4 of Protocol No. 4 are themselves the result of an evolutive interpretation.

However, there is a major objection that could be made to the use of the evolutive interpretation in N.D. and N.T. Indeed, this approach has normally been used in a progressive way, i.e., to expand rights. In the specific case of Article 4 of Protocol No. 4, the evolutive interpretation had allowed the ECtHR to guarantee effective access to the asylum procedure and, thus, to condemn pushbacks in the past. However, in this case, it served rather the contrary purpose, since it created a “default” exception to Article 4 of Protocol No. 4. This is an “extremely rare” use of the evolutive interpretation, and could even be “contrary to [the] object and purpose” of the ECHR. However, technically, there is nothing that prevents the ECtHR from “restricting the accepted scope of a particular guarantee”. Therefore, the jurisprudential U-turn in N.D. and N.T. could, perhaps, be attributed to an unusual exercise of the evolutive interpretation.

C. Conclusion

In any event, what the Grand Chamber did in N.D. and N.T. was to place certain irregular migrants—those who entered irregularly, “especially […] by taking advantage of their large numbers and using force”—outside the protection of Article 4 of Protocol No. 4. Ironically, this is what Spain had been doing since the very moment it ratified Protocol No. 4, and the reason why it was brought before the ECtHR. Yet, the Grand Chamber not only failed to condemn Spain, but turned this exclusion into the new ECHR protection standard. From our analysis, it seems safe to conclude that it did so by importing the Spanish Government’s submissions—which derived, in turn, from two decades of Spanish law and practice originally contrary to the ECHR—into its own jurisprudence. Hence, what has been branded as the “N.D. and N.T. exception” appears to be the result of an obvious bottom-up influence of Spain on the ECtHR. Now, whether the ECtHR accepted that influence because it genuinely believed Spain’s legal reasoning was sound or because of political pressure from the States, only the Grand Chamber knows—but that is a topic for another discussion.

D. Suggested Readings and Selected Bibliography:

Primary sources

Legislation

Commission of Interior, Sessions’ Diary of the Spanish Congress, Session no. 25, 13 February 2014 (7, 15, 5).

Council of Europe, 1976, Collected Edition of the “Travaux préparatoires” of Protocol No. 4 (505).

Council of Europe, 4 November 1950, ECHR.

Council of Europe, Chart of signatures and ratifications of Treaty 046 (Protocol No. 4 ECHR), status as of 13/06/2022.

Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Organic Law 4/2000, of 11 January, on the rights and freedoms of non-nationals in Spain and their social integration, as in force at 30 December 2014).

Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Organic Law 4/2000, of 11 January, on the rights and freedoms of non-nationals in Spain and their social integration, as in force at 23 February 2021).

Spanish Congress, Enmiendas e índice de enmiendas al articulado, Núm. 105-2, 4 November 2014 (115).

Spanish Congress, Report, No. 105-3, 24 November 2014 (28).

Jurisprudence

ECtHR (GC), 13 February 2020, N.D. and N.T. v. Spain, req. nos. 8675/15 and 8697/15.

ECtHR, 11 December 2018, M.A. and Others v. Lithuania, req. no. 59793/17.

ECtHR, 3 October 2017, N.D. and N.T. v. Spain, req. nos. 8675/15 and 8697/15.

ECtHR (GC), 1 July 2014, S.A.S. v. France, req. no. 43835/11.

ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers v. The United Kingdom, req. no. 31045/10.

ECtHR (GC), 23 February 2012, Hirsi Jamaa and Others v. Italy, req. no. 27765/09.

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Secondary sources

Doctrine

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A. Mowbray, (2009), “An Examination of the European Court of Human Rights' Approach to Overruling its Previous Case Law”, Human Rights Law Review, 9(2), 179 (198).

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Á. Sánchez Legido (2021), "El reconocimiento del derecho a solicitar protección internacional en las embajadas y consulados de España (a propósito de la STS 3445/2020)", Revista Electrónica de Estudios Internacionales 41 (18, 20).

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Press sources

20 MINUTOS, "Europa recuerda a España que las devoluciones en caliente de inmigrantes son ilegales", 20 Minutos, 3 November 2014.

A. A., "La defensora del pueblo reitera su oposición a las devoluciones en caliente", La Voz de Galicia, 27 February 2015.

A. Del Barrio, "La ONG Prodein denuncia que la Guardia Civil devolvió a Marruecos a un inmigrante gravemente herido", El Mundo, 16 October 2014.

EL MUNDO, "Cinco muertos en un asalto en la frontera de Ceuta; Zapatero moviliza a 480 soldados", El Mundo, 29 September 2005.

EL MUNDO, "Unos 350 inmigrantes entran en Melilla tras saltar la valla en un tramo de máxima altura", El Mundo, 3 October 2005.

EL PAÍS, "500 inmigrantes protagonizan el cuarto salto masivo de la valla de Melilla en siete días", El País, 5 October 2005.

EUROPA PRESS, "La Iglesia pide la 'retirada inmediata' de la reforma que legaliza 'devoluciones en caliente'”, Europa Press, 2 December 2014.

G. Rodríguez-Pina, "Nils Muižnieks: 'Es la primera vez que veo a un país intentar legalizar la devolución de inmigrantes'", El Huffington Post, 16 January 2015.

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G. Sánchez, "El Congreso aprueba una legislación contradictoria para regular las devoluciones en caliente", El Diario, 26 March 2015.

G. Testa, "ACNUR 'valora' los matices que el PP prevé añadir en el Senado a la legalización de las devoluciones", Ceuta Al Día, 11 February 2015.

J. J. Gálvez, "Los Gobiernos de PP y PSOE ocultaron las devoluciones en caliente desde 1999", El País, 31 October 2019.

J. J. Madueño, "Ceuta, el sueño roto para miles de marroquíes", ABC, 19 May 2021.

J. Jiménez Gálvez, "Los saltos de la valla de Melilla se duplican en 2014", El País, 21 October 2014.

J. Vargas, "Europa decide si las devoluciones en caliente de migrantes atentan contra los Derechos Humanos", Público, 12 February 2020.

P. F. Coleto, "La Oficina de Asilo y Refugio en la frontera de Ceuta ya está operativa tras más de cinco años", El Foro de Ceuta, 14 August 2020.

RTVE, "Becerril celebra la mejor regulación de las devoluciones en caliente y rechaza las concertinas", RTVE, 26 February 2015.

Government sources

Government of Spain, "El ministro del Interior anuncia el envío a Melilla de un refuerzo de más de 80 efectivos de las Fuerzas y Cuerpos de Seguridad del Estado", 17 March 2015.

Government of Spain, "Jorge Fernández Díaz subraya que la apertura de las Oficinas de Protección Internacional reafirma el compromiso de España con la defensa de los derechos humanos", 16 March 2015.

Government of Spain, "Unos 500 inmigrantes logran acceder a Melilla en el salto más violento y masivo desde 2005", 20 March 2014.

NGO and other institutional sources

CEAR, "Informe 2015: Las personas refugiadas en España y Europa" (164).

European Parliament, Parliamentary questions, Subject: Updates on the situation in Ceuta and Melilla, 3 July 2015.

F. González Morales, "Report on means to address the human rights impact of pushbacks of migrants on land and at sea", Human Rights Council, 12 May 2021.

Médicos del Mundo, "130 organizaciones solicitamos que se impida la legalización de las 'devoluciones en caliente'”, 12 February 2014.

SOS RACISMO, "Informe Frontera Sur 1995-2006: 10 años de violación de los derechos humanos" (5).

UNHCR, "España: ACNUR reconoce avances en la enmienda a la ley de extranjería", UNHCR, 11 February 2015.

W. Spindler, "UNHCR concerned over Spain’s bid to legalize push-backs from enclaves", UNHCR, 28 October 2014.

To cite this contribution: C. Bosch March, “Land pushbacks at the Moroccan-Spanish border: from illegal State practice to endorsement by the European Court of Human Rights. A turn of events ‘made in Spain’”, Cahiers de l’EDEM, Special Issue, August 2022.