Summary land border expulsions in front of the ECtHR: ND and NT v Spain

This journal contribution is to be read in conjunction with the EDAL case summary on ND and NT v Spain.

Introduction :

When ND and NT submitted their application to the European Court of Human Rights in February 2015, the latest Grand Chamber judgment on collective expulsions was Hirsi Jamaa and others v Italy App no 27765/09 (ECtHR, 23 February 2012), and there was a feeling that, in a context of intense externalization by the EU of both its border control and legal responsibility, the Court embraced its role as human rights safe keeper.

As ND and NT’s applications progressed, the Grand Chamber published its judgment in Khlaifia and others v Italy App no 16483/12 (ECtHR, 15 December 2016), quietly overturning some of its jurisprudence on collective expulsions, yet leaving many questions open. ND and NT v Spain App nos 8675/15 and 8697/15 (ECtHR, 3 October 2017) is the first judgment on collective expulsions since Khlaifia.

The admissibility stage: jurisdiction, evidence and victim’s status

In ND and NT, the Court rejected all of Spain’s inadmissibility arguments in a series of strongly worded dicta. First, the Court dismissed the concept of an inter-border zone – or as otherwise referred to by the Spanish government, an“operational border”, with a varying location depending on the circumstances – in which the Convention (“ECHR”) would not apply. For the first time, the Court applied its Al-Skeini App no 55721/07 (ECtHR, 7 July 2011) and Hirsi jurisprudence to a land border and concluded that irrespective of whether the applicants had entered Spanish territory, de facto control would in any event trigger jurisdiction (paras 54-55).

Yet the issue of evidence remained. One of the practical obstacles to litigating systemic summary expulsions is the lack records, visual or other ...

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