People died trying to cross the border into the European Union. The refusal in similar cases was recently deemed legal by the European Court of Human Rights, while the Council of Europe’s Commissioner for Human Rights complained of human rights violations.
At least 18 people were killed last weekend while trying to reach the Spanish enclave of Melilla from Morocco. Another 63 migrants and about 140 Moroccan police officers were injured. Up to 2,000 people wanted to climb the three parallel six-meter-high border fences between Morocco and the Spanish North African region of Melilla on Friday.
Human rights activists have made serious allegations against the security forces. Amine Abidar, president of the Moroccan Association for Human Rights in the city of Nador, said Moroccan authorities used “unjustified violence” and “abused” migrants. German news agency. People were left trapped on the ground for hours without medical assistance. According to the organization, many immigrants died as a result.
Melilla is part of Spain but is located in North Africa on the Moroccan coast. African refugees regularly try to reach Spanish territory there so that they can apply for asylum under EU law.
But in practice, people at the border fences cannot apply for asylum. They simply do not have access to the relevant official bodies. At irregular intervals, the refugees attack the border fence – and the border guards carry out intense defensive work. The dead and wounded.
European Court of Human Rights in Melilla: No unlawful response
For years, such cases have been brought to the European Court of Human Rights, with support from ProAsyl or the European Center for Constitutional and Human Rights (ECCHR), for example. For human rights activists, the actions of border guards constitute a violation of the Fourth Additional Protocol to Article 4 of the European Convention on Human Rights (ECHR), the prohibition of collective expulsion, the so-called retaliation. These are people who are returned to third countries without being able to submit or verify an asylum application.
There is no doubt that push-backs are prohibited. However, there is significant disagreement among lawyers on the question of where the limits of illegal returns lie.
The European Court of Human Rights has ruled in a number of cases relating to this case. It is the competent court when it comes to compliance with the obligations set out in the European Convention on Human Rights. Specifically in relation to Melilla, the Grand Chamber of the European Court of Human Rights ruled that Spain was allowed to immediately return Africans to Morocco after they overcame the enclave fence (Judgment of February 13, 2020, Case No. 8675/15 and 8697/15.) .
The European Court of Human Rights has argued that the men did not intentionally enter the country through a legal route. Therefore the fact that they were returned to Morocco without an individual expulsion decision was the result of their illegal behaviour, and because of their censure behaviour, it should not be considered as an illegal return.
“The European Court of Human Rights has argued that people have deliberately taken advantage of their large number of people and used force to cross national borders, which creates turmoil and is difficult to control and endangers the state of public safety, even though there could have been effective legal protections over the Boundaries,” Carsten Gerek explains. He is an attorney and supporter of the ECCHR Refugee and Immigration Program and was the plaintiff’s attorney at the time.
However, this reasoning was from the Grand Chamber of the European Court of Human Rights. But a few years ago, another chamber of the European Court of Human Rights agreed with the plaintiffs (Judgment of 3 October 2017, Complaint No. 8675/15).
European Court of Human Rights tightens case law
Like the Grand Chamber, the European Court of Human Rights argued when about 1,500 refugees were brought to Greece via North Macedonia (Judgment of April 5, 2022, Case No. 55798/16 and others). This was also not an illegal refusal. Because the refugees themselves entered the country illegally and did not apply for asylum.
In these cases, people had set off on foot from the Greek refugee camp Idomeni to North Macedonia. The work became known as The March of Hope. A few kilometers from the border, people were intercepted and sent back to Greece. Eight complainants have filed a complaint against the measure, with support from Pro Asyl and ECCHR. Also unsuccessful.
According to asylum law experts, EMGR tightened its judicial law once again in this decision. “In this case, the Chamber not only applied the requirements of the Grand Chamber of the decision against Spain, but also lowered the requirements for its censure conduct without further justification and significantly expanded the scope of this exclusion,” says Gerek.
Ceric makes it indisputable – and this is also the case in the judgment – that there was no violence on the part of the complainants in North Macedonia nor was there a disturbing situation. “After applying the previous requirements, there was no guilty behavior on the part of the refugees, and therefore the European Court of Human Rights had to determine the violation of Article 4 of Additional Protocol No. 4 of the European Convention on Human Rights,” says the lawyer. In addition, it is clear that there was no real and effective access to border measures here, because: “The Greek-Macedonian border crossings are completely closed to refugees since March 8, 2016.”
Commissioner for Human Rights v. European Court of Human Rights
The Commissioner for Human Rights at the Council of Europe is in line with refugee protection organizations – and thus apparently against the European Court of Human Rights. The position is elected by the Parliamentary Assembly for a six-year term, an independent body that works to protect human rights and raise public awareness of them in the 46 member states of the Council of Europe. The Commissioner acts as a consultant on human rights issues, points out potential shortcomings in law and practice and supports Member States in implementing the European Convention on Human Rights (ECHR). Dunja Mijatovic from Bosnia and Herzegovina has held this position since April 2018.
In April 2022, two days after the European Court of Human Rights ruling on North Macedonia, Mijatovic submitted a report on the situation of refugees at the external borders of the European Union. In this it criticizes the gross and systematic violations of human rights and demands that they be clarified, punished and put an end to them.
It mentions illegal pushbacks from Croatia to Bosnia and Herzegovina and Serbia, but also from Slovenia, Austria, Italy, Romania and Hungary. It is worrying that in some Member States the use of force is an acute and systematic feature of push-backs.
The basic idea of the ban: individuality
“The idea behind the ban on collective expulsion is that everyone has the right to be heard before being expelled or expelled,” Jerikeh explains. If this does not happen, this indicates that it was not the individual but the collective aspects that mattered.
Individual action also provides protection against unacceptable use of force and other human rights abuses, as incidents and which officials are responsible can be identified. “Then human rights violations can at least be prosecuted, as you know who has been in contact with those affected,” said the lawyer from Hamburg.
“Until 2018, the Egyptian General Risk Management Association took a clear stand against expulsions, and stressed – for example in actions against Italy and Greece – the ban on mass expulsions. Since then, there has been a gradual erosion,” says Gerek. The court has largely abandoned the requirement to interpret property rights as “practical and effective, not theoretical and deceptive.” The stalled discussion about the EU’s Common European Asylum System (CEAS) certainly plays a role here. “Nevertheless, one would expect the Human Rights Court to promote human rights in such a situation and not break them,” said the lawyer from Hamburg.
criticizes Dr. Konstantin Hrushka, Senior Research Fellow at the Max Planck Institute for Social Law and Social Policy. “In the meantime, it is clear that he has succumbed in part to political pressures and is now relying more on the fantasy of access to the asylum application center than the real one on the possibility of refugees having access to this place.” This can be seen especially in the procedures for the external land borders of the Schengen area. The European Court of Human Rights has deemed it sufficient for the federal states to provide asylum application centers in remote locations at their borders. How and whether those seeking protection can play a secondary role. Hrushka says: “The European Court of Human Rights is now very innovative when it comes to legal access methods that are theoretically available.
In any case, the Commissioner for Human Rights is sure that member states must comply with the Convention on Human Rights and the Additional Protocols – at least if they have signed on. Mijatović wrote that “Human rights should protect us all equally, regardless of national or ethnic origin, skin color or belief, perhaps also referring to young people from Africa on the border with Melilla.
With material from dpa