Note in margine alla sentenza della Corte europea dei diritti dell’uomo nell’affare N.D. e N.T. c. Spagna

The present article examines the ECtHR ruling in the case of N.D. and N.T. v. Spain. The applicants, a Malian and an Ivorian national, crossed the border fence between Morocco and the Spanish enclave of Melilla. Upon getting off the fence, they were halted by the Spanish Guardia Civil and pushed-back to Morocco. The Court declared that they had been under the “continued and exclusive control” of Spanish authorities and then under their de facto jurisdiction. Therefore, the Court rejected the Spanish Government’s view that the events had occurred out of Spain’s jurisdiction. The Court reiterated that Article 4 of Protocol No. 4 (prohibition of collective expulsions) requires that the personal circumstances of every person concerned be individually considered. In this case the removal of the applicants breached Article 4. Lastly, the immediate expulsion established sufficient grounds to generate a violation of the right to an effective remedy (Art. 13 ECHR) that would have allowed the applicants to submit a complaint asserting a violation of Article 4. The judgment casts serious doubts about the conformity of the 2015 reform (“ley Orgánica 4/2015”) of the Immigration Act 4/2000 with the ECHR. The “ley Orgánica” gives legal basis to the Spanish push-back practice.