Despite the ECtHR not finding a violation of the ECHR – let us not forget about fundamental rights protection in EU law.

In short, the ECtHR case concerned a Côte d’Ivoire and Mali national who climbed the fences of the border between Morocco and Melilla (a Spanish enclave in north-west Africa). The three parallel fences were built to prevent irregular migrants from reaching Spanish territory. After spending hours perched on the top of one of the fences, they finally climbed down and where immediately apprehended by Spanish police and summarily returned to Moroccan authorities with a group of 75-80 persons. Thus, the question addressed by the ECtHR was whether such practice constituted an expulsion and if so, whether the expulsion was collective as prohibited by article 4 of Protocol 4 to the ECHR. The Court found the return to constitute an act of expulsion (para 185), but in assessing the collectiveness, the Court failed to provide a convincing reasoning rather focusing on the fact that the applicants put themselves in an unlawful situation, choosing not to use official legal procedures, hence ‘the lack of individual removing decision could be attributed to the fact that the applicants […] had not made use of the official entry procedures […] and that it has thus been a consequence of their own conduct.’ (para 231, see also Courts emphasis in press-release)The judgment has been criticised for ignoring the lack of opportunity to apply for protection by the applicants, as well as the Court failing to address the practical impossibility to lodge an application for international protection through legal means at the border of Melilla (see third party interventions by Council of Europe Commissioner for Human Rights and the Office for the United Nations High Commissioner for Refugees).

This case, and the situation at Melilla at large, is just one example of pushbacks of irregular migrants by Member States at EU’s external borders, leading to the denial of the possibility request international protection at EU territory. Croatia is for example another Member State which has recently been in the limelight due to systematic pushbacks and violence at its borders to Serbia and Bosnia Herzegovina. There is now growing fear that the ECtHR judgment is not only ignoring the reality at the Spanish-Moroccan border, as well as the reality in many more Member States, but that it will be interpreted as a ‘carte blanche for violent push-backs everywhere in Europe’, and continue to serve as a model for other Member States along EU external borders.  

The ECHR does not provide for a right to asylum as such, but cases have been examined in relation to articles 2, 3 and 13 of the Convention, as well as article 4 of Protocol 4 on the prohibition of collective expulsion of aliens, which hence explains the setting of the case brought by N.D and N.T. Nevertheless, the EU Charter of Fundamental Rights provides for the right to asylum in Article 18 and article 78 TFEU provides for the creation of a Common European Asylum System. Thus, the right to asylum has been given further expression in EU secondary law, laying down applicable rules to ensure that migrants and refugees wishing to request international protection can do so quickly and effectively. Pushbacks prevent migrants and refugees to file an application for international protection, and Spain and other Member States are in fact violating EU asylum procedures, as well as the EU Charter of fundamental rights.

Hence, Member States of the EU should not forget that they are also bound to comply with EU law in this matter, including the Charter. In the context of EU law, enforcement of compliance with fundamental rights in these kinds of cases unfortunately remains an issue. The EU is bound to act within its powers, and/or take political action. So far, Member States have not faced any direct repercussions for engaging in pushbacks or violent treatment of migrants and refugees at the EU external borders. On the contrary, in a Communication from the Commission on Croatia’s Schengen status, the Commission states that “the allegations of denial of access to the asylum procedure and of use of force by law enforcement officials at the border remains a challenge,” and that “All the measures taken by Croatia for the control of its external borders must comply with the Charter, EU and international human rights obligations (including the principle of non-refoulement and effective access to the asylum procedure).” The Communication further states that “[…] Croatia continues to fulfil its commitment in relation to the protection of human rights.” The Commission reaches this conclusion and gives its green light for Croatia to join Schengen despite recent reports of continued violence and pushbacks.

Undoubtedly, the Commission should have put more emphasis on Croatia putting an end to its practices in its Communication. Even more so, where there is evidence of sustained practice of pushbacks at EU’s external borders, resulting in the non-compliance with EU law, the Commission should commence infringement proceedings against these Member States. The Member States are under an obligation to ensure that their national legislation is in compliance not only with the legislation of the Common European Asylum System, but also the EU Charter of fundamental rights. Equally so, EU institutions must also comply with the Charter.

The Commission has commenced infringement procedures against Hungary for a number of measures relating to its border management, including the restriction of the right to request asylum, which is currently pending in front of the CJEU, and for the denial of food in transit zones. It should be noted that the Commission did not ask for interim measures, which could have led the CJEU to order Hungary to stop its practices until a judgment has been delivered. A reasoned opinion concerning the non-provision of food was sent to Hungary in October 2019, asking the Member State to comply with its obligations under EU asylum law and article 4 of the Charter. The Commission further stated that it might decide to refer the case to the CJEU if Hungary did not comply with the relevant rules within the one-month deadline stipulated. It ought to be seen what the next steps will be and whether the Commission will decide to take action against other well documented fundamental rights violations at the EU external borders. Put differently, how serious is the Commission about protecting fundamental rights at the external borders of the EU?

While there absolutely should be a discussion on the failure of the ECtHR to effectively defend human rights in this case, EU fundamental rights (as given expression to in EU secondary law) should not be forgotten. Despite the ECtHR not ruling on the access to file for international protection as such, and not finding a violation of the ECHR in relation to collective expulsions, it remains a fact that Spain and other Member States are violating EU fundamental rights by engaging in pushbacks, preventing the possibility to apply for international protection. Hence, in the shock of this ECtHR judgment, focus and efforts must also be put on discussing and emphasising the EU’s and Member States’ (in)action and responsibility in these matters, as well as their obligations to protect fundamental rights within the EU.       

This blogpost relates to Elin’s research within her PhD project, which address the division of responsibilities in fundamental rights protection between the EU and the Member States.