CASE OF N.D. AND N.T. v. SPAIN
Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
9. The first applicant was born in 1986 and the second applicant in 1985. 10. The first applicant left his village in Mali on account of the 2012 armed conflict. He arrived in Morocco in March 2013. He spent approximately nine months in the makeshift camp for migrants on Gurugu Mountain, near the Spanish border crossing into Melilla, a Spanish enclave on the North African coast. He spoke of several raids on the camp by the Moroccan law-enforcement authorities. 11. The second applicant arrived in Morocco in late 2012. He also stayed in the camp on Gurugu Mountain. 12. On 13 August 2014 the applicants left the Gurugu Mountain camp and attempted to enter Spain as part of a group of sub-Saharan migrants, via the Melilla border crossing. The crossing comprises three successive fences: two six-metre-high outer fences and a three-metre-high inner fence. A system of infrared CCTV cameras and movement sensors is in place. The applicants and other migrants scaled the first fence in the morning. They claimed that stones had been thrown at them by the Moroccan authorities. The first applicant managed to climb to the top of the third fence, and remained there until the afternoon without medical or legal assistance. The second applicant stated that he had been hit by a stone while climbing the first fence and had fallen, but had subsequently succeeded in climbing over the first two fences. During this time the applicants allegedly witnessed violence against some of the sub-Saharan migrants by the Spanish Guardia Civil and Moroccan law-enforcement officials. At around 3 p.m. and 2 p.m. respectively the first and second applicants climbed down from the third fence, assisted by Spanish law-enforcement officials. As soon as they reached the ground they were apprehended by members of the Guardia Civil, who handcuffed them and sent them back to Morocco. At no point were the applicants’ identities checked. They had no opportunity to explain their personal circumstances or to be assisted by lawyers, interpreters or medical personnel. 13. The applicants were then transferred to Nador police station, where they requested medical assistance. Their request was refused. They were subsequently taken, together with other individuals who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had also been returned to Morocco on 13 August 2014. 14. Journalists and other witnesses were at the scene of the assault on the fences and the expulsions of 13 August 2014. They provided video footage which the applicants submitted to the Court. Some non-governmental organisations subsequently lodged a complaint with the Melilla investigating judge no. 3, seeking the opening of an investigation. 15. On 9 December and 23 October 2014 respectively, the first and second applicants succeeded in entering Spanish territory by the Melilla border crossing. Two sets of proceedings were commenced concerning them and orders were subsequently issued for their expulsion. N.D. was returned to Mali on 31 March 2015 under an expulsion order issued on 26 January 2015, after his asylum application of 17 March 2015 had been rejected by the administrative authorities on 26 March 2015. He is currently in the Bankoumana area (Koulikoro region, south-west of Bamako). An order for N.T.’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 after the dismissal of his administrative appeal (de alzada). His current situation is unknown. Both applicants were represented by lawyers during these proceedings.