CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 octobre 2017

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AND N.T. v. SPAIN   (Applications nos. 8675/15 and 8697/15)         JUDGMENT       STRASBOURG   3 October 2017         THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 13/02/2020   This judgment may be subject to editorial revision . . In the case of N.D. and N.T. v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Branko Lubarda, President,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar , Having deliberated in private on 12 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 8675/15 and 8697/15) against the Kingdom of Spain. The applicant in application no. 8675/15, N.D. (“the first applicant”), is a Malian national. The applicant in application no. 8697/15, N.T. (“the second applicant”), is a national of Côte d’Ivoire. The applications were lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 February 2015. The Chamber to which the cases had been allocated acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicants were represented by Mr C. Gericke and Mr G. Boye Tuset, lawyers practising in Hamburg and Madrid respectively. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human Rights Legal Department, Ministry of Justice. 3.     The applicants alleged, in particular, a violation of Article 3 and Article 13 of the Convention, of those two Articles taken together, of Article 4 of Protocol No. 4 to the Convention, and, lastly, of Article 13 taken together with Article 4 of Protocol No. 4. They complained of their immediate return to Morocco and of the lack of an effective remedy in that regard. They submitted that they had been subjected to a collective expulsion and had had no opportunity to be identified, to explain their individual circumstances and the ill-treatment to which they allegedly risked being subjected in Morocco, or to challenge their return by means of a remedy with suspensive effect. 4.     By a decision of 7 July 2015 the Government were given notice of the complaints under Article 4 of Protocol No. 4 and Article 13 of the Convention, and under both those Articles taken together. The Court decided to join the applications and found the remaining complaints inadmissible. 5.       The applicants and the Government each filed observations on the admissibility and merits of the case. 6.       The Commissioner for Human Rights of the Council of Europe (“the Human Rights Commissioner”) exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2). 7.     The Court also received written observations from the Office of the United Nations High Commissioner for Refugees (UNHCR), the UN High Commissioner for Human Rights (OHCHR), the Spanish Commission for Assistance to Refugees (CEAR) and, acting collectively, the Centre for Advice on Individual Rights in Europe (the AIRE Centre), Amnesty International, the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ), all of which had been given leave by the President to intervene under Article 36 § 2 of the Convention and Rule 44 § 3. 8.     The parties replied to those observations. They also submitted observations following the delivery on 15 December 2016 of the Court’s judgment in Khlaifia and Others v. Italy ([GC], no. 16483/12, ECHR 2016). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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. A.     The first attempt to enter Spain via the Melilla border crossing 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. B.     Subsequent entry into Spain 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. II.     RELEVANT DOMESTIC LAW A.     Royal Decree 557/2011 of 20 April 2011 (implementing regulations for Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration   – “the LOEX”) 16.     The provisions of Royal Decree 557/2011 read as follows: Article 1. Entry via authorised crossings “1.     Without prejudice to the provisions of the international conventions to which Spain is a party, aliens seeking to enter Spanish territory must do so via the authorised border crossings. They must be in possession of a valid passport or travel document that provides proof of their identity and is accepted for that purpose, and, where required, of a valid visa. They must not be subject to an explicit entry ban. They must also present the documents required by these regulations explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or, as applicable, that they have the means of obtaining them lawfully. ...” Article 4. Conditions “1.     The entry of foreign nationals into Spanish territory shall be subject to compliance with the following conditions. (a)     They must be in possession of the passport or travel documents referred to in the previous Article. (b)     They must be in possession of the relevant visa in accordance with Article 7. (c)     [They must present] supporting documents concerning the purpose and conditions of their entry and stay, in accordance with Article 8. (d)     [They must provide] a guarantee, as applicable, that they have sufficient funds to live on for the expected duration of their stay in Spain, or that they have the means of obtaining those funds, and sufficient funds for travel to another country or return to the country from which they arrived, in accordance with Article 9. (e)     They must present, as applicable, the health certificates referred to in Article 10. (f)     They must not be subject to an entry ban for the purposes of Article 11. (g)     They must not present a danger to public health, public order, national security or Spain’s international relations or those of other States to which Spain is linked by a convention on this subject. 2.     The Office of the Commissioner-General for Aliens and Borders ( Comisaría General de Extranjería y Fronteras ) may grant permission to enter Spain to aliens not satisfying the conditions set forth in the previous paragraph, on exceptional humanitarian or public-interest grounds or in order to comply with the undertakings entered into by Spain.” B.     The Guardia Civil operations protocol of 26 February 2014 on border surveillance, which introduced the term “operational border” 17 .     The relevant parts of the Guardia Civil operations protocol of 26   February 2014 on border surveillance read as follows:   “   With this system of fences, there is an objective need to determine when unlawful entry has failed and when it has taken place. This requires defining the line which delimits the national territory, for the sole purpose of the rules governing aliens, a line which takes the physical form of the fence in question. Hence, where attempts by migrants to cross this line unlawfully are contained and repelled by the law ‑ enforcement agencies responsible for controlling the border, no actual unlawful entry is deemed to have taken place. Entry is deemed to have been effected only where a migrant has penetrated beyond the internal fence referred to, thus entering the national territory and coming within the scope of the rules governing aliens ...” C.     Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration, as amended by, among other provisions, Law 4/2015 on the protection of citizens’ safety 18 .     Following various incidents similar to those that are the subject of the present applications, the Spanish Government enacted Institutional Law 4/2015 of 30 March 2015 on the protection of citizens’ safety, amending Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”). The amendment, which has been in force since 1 April 2015, lays down special rules for the interception and removal of migrants arriving in Ceuta and Melilla. 19 .     The relevant provisions of the LOEX currently in force read as follows: Section 25   “1.     Aliens seeking to enter Spain must do so via the authorised border crossings. They must be in possession of a passport or travel document that provides proof of their identity and is accepted for that purpose under the international conventions to which Spain is a party, and must not be subject to an explicit entry ban. They must also present the documents required by the implementing regulations [of the present Law] explaining the purpose and conditions of their entry and stay, and must provide proof that they have sufficient funds for the expected duration of their stay in Spain or have the means of obtaining them lawfully. ...” Tenth additional provision, added by the aforementioned Institutional Law 4/2015 of 30 March 2015. Special rules for Ceuta and Melilla   “1.     Aliens attempting to penetrate the border containment structures in order to cross the border unlawfully, and whose presence is detected within the territorial demarcation lines of Ceuta or Melilla, may be returned in order to prevent their unlawful entry into Spain. 2.     Their return shall in all cases be carried out in compliance with the international rules on human rights and international protection recognised by Spain. 3.     Applications for international protection shall be submitted in the places provided for that purpose at the border crossings; the procedure shall conform to the standards laid down concerning international protection.” III.     EUROPEAN UNION LAW A.     Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) 20.     Fundamental rights, as guaranteed by the Convention, form part of European Union law and are recognised in the following terms in the Treaty on European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009): Article 2 “   The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities ...” Article 6 “1.     The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. ... 3.     Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” B.     Charter of Fundamental Rights of the European Union (2000), which has been part of the primary law of the European Union since the entry into force of the Treaty of Lisbon 21.     Article 18 of the Charter of Fundamental Rights of the European Union contains an express provision guaranteeing the right to asylum, which reads as follows: “   The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” 22.     Article 19 of the Charter provides: Protection in the event of removal, expulsion or extradition   “1.     Collective expulsions are prohibited. 2.     No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” 23 .     Article 47 of the Charter, entitled “Right to an effective remedy and to a fair trial”, is worded as follows: “   Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” C.     Treaty on the Functioning of the European Union (as amended by the Treaty of Lisbon, which entered into force on 1 December 2009) 24.     The issues of particular relevance to the present case are covered by Title V – “Area of freedom, security and justice” – of Part Three of the Treaty on the Functioning of the European Union (TFEU), entitled “Union policies and internal actions”. In Chapter 1 of this Title, Article 67 stipulates: “1.     The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2.     It ... shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third ‑ country nationals ...” 25.     Article 72 of the same Chapter of the Treaty provides as follows: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” 26.     The second chapter of Title V is entitled “Policies on border checks, asylum and immigration”. Article 78 § 1 provides: “   The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement . This policy must be in accordance with the Geneva Convention ... and other relevant treaties.” 27.     Article 78 § 2 provides, inter alia , for the Union’s legislative bodies to adopt a uniform status of asylum and subsidiary protection, as well as “criteria and mechanisms for determining which Member State is responsible for considering an application for asylum” . D.     The “Return Directive” 28.       In the European Union context, the return of irregular migrants is governed by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the “Return Directive”) on common standards and procedures in Member States for returning illegally staying third-country nationals. The Directive contains the following provisions in particular: Article 1 – Object “   This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.” Article 2 – Scope   “1.     This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2.     Member States may decide not to apply this Directive to third-country nationals who: (a)     are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; ...” Article 8 – Removal “1.     Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. ...” Article 12 – Form “1.     Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. ...” Article 13 – Remedies “1.     The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article   12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2.     The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3.     The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4.     Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.” 29.     In interpreting the Return Directive, the Court of Justice of the European Union (CJEU) has held that aliens are entitled, before a decision to return them is adopted, to express their view on the legality of their stay (see, in particular, Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques , case C-249/13, judgment of 11 December 2014, §§ 28-35). The principles established by the case-law of the CJEU concerning the right to be heard under the Return Directive are set out in detail in the judgment in Khlaifia and Others (cited above, §§ 42-45). This right to be heard, which applies as a fundamental principle of EU law, (a) guarantees to every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely; and (b) is designed to enable the competent authority effectively to take into account all relevant information, to pay due attention to the observations submitted by the person concerned, and thus to give a detailed statement of reasons for its decision (see Khaled Boudjlida , cited above, §§ 37-38). The CJEU added, among other things, that the alien need not necessarily be heard in respect of all the information on which the authority intended to rely to justify its return decision, but must simply have an opportunity to present any arguments against his removal. The CJEU established the restrictions to which the right to be heard could be made subject, and the consequences of failure to comply with this condition, and held that a decision taken following an administrative procedure in which the right to be heard had been infringed would result in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different. Furthermore, the right to be heard could be subjected to restrictions, provided that they corresponded to objectives of general interest and did not involve, with regard to the objective pursued, a disproportionate and intolerable interference which infringed the very substance of the right guaranteed (see   Khlaifia and Others , cited above, §§ 44-45). E.     Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) 30 .     The relevant provisions of Chapter II of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) read as follows: Article 8 – Information and counselling in detention facilities and at border crossing points “1.     Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure. 2.     Member States shall ensure that organisations and persons providing advice and counselling to applicants have effective access to applicants present at border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organisations and persons in those crossing points and in particular that access is subject to an agreement with the competent authorities of the Member States. Limits on such access may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the crossing points concerned, provided that access is not thereby severely restricted or rendered impossible.” Article 9 – Right to remain in the Member State pending the examination of the application “1.     Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit. ...”   Article 11 – Requirements for a decision by the determining authority “1.     Member States shall ensure that decisions on applications for international protection are given in writing. 2.     Member States shall also ensure that, where an application is rejected with regard to refugee status and/or subsidiary protection status, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing. Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with such information at an earlier stage either in writing or by electronic means accessible to the applicant. 3.     For the purposes of Article 7(2), and whenever the application is based on the same grounds, Member States may take a single decision, covering all dependants, unless to do so would lead to the disclosure of particular circumstances of an applicant which could jeopardise his or her interests, in particular in cases involving gender, sexual orientation, gender identity and/or age-based persecution. In such cases, a separate decision shall be issued to the person concerned.” Article 12 – Guarantees for applicants “1.     With respect to the procedures [for applying for international protection], Member States shall ensure that all applicants enjoy the following guarantees: (a)     they shall be informed in a language which they understand or are reasonably supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2011/95/EU, as well as of the consequences of an explicit or implicit withdrawal of the application. That information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 13; (b)     they shall receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to provide those services at least when the applicant is to be interviewed as referred to in Articles 14 to 17 and 34 and appropriate communication cannot be ensured without such services. In that case and in other cases where the competent authorities call upon the applicant, those services shall be paid for out of public funds; (c)     they shall not be denied the opportunity to communicate with UNHCR or with any other organisation providing legal advice or other counselling to applicants in accordance with the law of the Member State concerned; (d)     they and, if applicable, their legal advisers or other counsellors in accordance with Article 23(1), shall have access to the information referred to in Article 10(3)(b) and to the information provided by the experts referred to in Article 10(3)(d), where the determining authority has taken that information into consideration for the purpose of taking a decision on their application; (e)     they shall be given notice in reasonable time of the decision by the determining authority on their application. If a legal adviser or other counsellor is legally representing the applicant, Member States may choose to give notice of the decision to him or her instead of to the applicant; (f)     they shall be informed of the result of the decision by the determining authority in a language that they understand or are reasonably supposed to understand when they are not assisted or represented by a legal adviser or other counsellor. The information provided shall include information on how to challenge a negative decision in accordance with the provisions of Article 11(2). 2.     With respect to the procedures provided for in Chapter V, Member States shall ensure that all applicants enjoy guarantees equivalent to the ones referred to in paragraph 1(b) to (e).” 31.     The further provisions of Chapter II set forth, inter alia , the obligations of applicants for international protection vis-à-vis the competent authorities with a view to establishing their identity and the other elements required; the possibility for applicants to have a personal interview with a person competent under national law, the conditions governing that interview, the content of the interview and the recording thereof; the medical examinations which the applicant may be required to undergo relating to signs that might indicate past persecution or serious harm; the provision of legal and procedural information free of charge and the conditions governing the provision of such information free of charge; the right to legal assistance and representation at all stages of the procedure, the scope of such assistance and representation and the conditions for granting them (Articles 13 to 23). F.     Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) 32 .     Article 13(1) of the Schengen Borders Code states: “1.     The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. A person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC.” IV.     OTHER RELEVANT DOMESTIC AND INTERNATIONAL MATERIALS A.     The Spanish Ombudsperson’s Office 33 .     In his 2005 annual report, the Spanish Ombudsperson wrote as follows: “   As regards the issue whether the border zone should be regarded as Spanish territory and, accordingly, which rules are applicable to it, [it can be asserted, in] the light of the various conventions signed during the nineteenth century between Spain and Morocco defining the jurisdictional limits of the autonomous city of Melilla, that the zone is constructed ... on Spanish territory, that [the area in question] belongs exclusively to Spain and that it is controlled by the Spanish law ‑ enforcement authorities. It is therefore not for the Spanish administrative authorities to determine where our country’s legislation begins to apply. That territorial application is governed by international treaties or, as applicable, by international custom, which define the borders with neighbouring States.” 34 .     In presenting her 2013 annual report to the Senate on 9 April 2014 the Spanish Ombudsperson deplored the “heart-rending images of people having climbed to the top of the fences” and stressed that “once a person is on Spanish territory – as we believe to be the case [when he or she is on the fences of the Melilla border crossing] ­ ­ – he or she should be dealt with in accordance with the law in force”. The Ombudsperson therefore condemned the practice of immediate returns ( devoluciones en caliente ), which, she reiterated, “do not exist under the legislation on aliens” [1] . B.     Vienna Convention on the Law of Treaties of 23 May 1969 35 .     Article 31 of the Vienna Convention on the Law of Treaties of 23   May 1969, concerning the general rule of interpretation, reads as follows: “1.     A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.     The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a)     any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b)     any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.     There shall be taken into account, together with the context: (a)     any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b)     any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c)     any relevant rules of international law applicable in the relations between the parties. 4.     A special meaning shall be given to a term if it is established that the parties so intended.” 36.     Article 32 of the Treaty, on supplementary means of interpretation, provides: “   Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a)     leaves the meaning ambiguous or obscure; or (b)     leads to a result which is manifestly absurd or unreasonable.” C.     International Law Commission 37 .     At its sixty-sixth session in 2014, the International Law Commission (ILC) adopted a set of “Draft articles on the expulsion of aliens”. This text was submitted to the United Nations General Assembly, which took note of it (Resolution A/RES/69/119 of 10 December 2014). The following articles are of particular interest: Article 2 – Definitions “   For the purposes of the present draft articles: (a)     ’expulsion’ means a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non ‑ admission of an alien to a State   (b) ‘alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.” Article 3 – Right of expulsion “   A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.” Article 4 – Requirement for conformity with law “   An alien may be expelled only in pursuance of a decision reached in accordance with law.” Article 5 – Grounds for expulsion “1.     Any expulsion decision shall state the ground on which it is based. 2.     A State may only expel an alien on a ground that is provided for by law. 3.     The ground for expulsion shall be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. 4.     A State shall not expel an alien on a ground that is contrary to its obligations under international law.” Article 9 – Prohibition of collective expulsion “1.     For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group. 2.     The collective expulsion of aliens is prohibited. 3.     A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. 4.     The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.” Article 13 – Obligation to respect the human dignity and human rights of aliens subject to expulsion “1.     All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process. 2.     They are entitled to respect for their human rights, including those set out in the present draft articles.” Article 17 – Prohibition of torture or cruel, inhuman or degrading treatment or punishment “   The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.” 38.     In its commentary on Article 9 of the draft articles, the International Law Commission noted, inter alia , as follows: “... (4)     The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles ...” V.     COUNCIL OF EUROPE DOCUMENTS A.     Report of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 39.     From 14 to 18 July 2014 a delegation of the CPT carried out a visit to Spain. One objective of the visit was to examine certain aspects of the treatment of irregular migrants intercepted in the Melilla enclave, along the border with Morocco. 40.     In its report, published on 9 April 2015, the CPT stated as follows: “... 38.     The CPT acknowledges that a number of European States have to cope with frequent influxes of irregular migrants. It is notably the case for those countries situated at the external frontiers of the European Union which act as the gateway to the rest of Europe. Spain is one of these countries facing such pressures. 39.     The autonomous municipality of Melilla is a Spanish exclave of 12 km² located on the northern coast of Africa, surrounded by Moroccan territory. The autonomous municipality lies on the migration route from North and Sub-Saharan Africa towards Europe; it is also used by Syrian migrants. The delegation was informed that the number of foreign nationals trying to cross Melilla’s border irregularly has increased drastically over the last year and a half. The Guardia Civil is responsible for patrolling the land border and the coast to prevent clandestine entry. The delegation was informed in Melilla that the Guardia Civil has institutionalised co-operation with the Moroccan Gendarmerie but no formal co-operation with the Moroccan Auxiliary Forces (“MAF”), which have the prime responsibility for border surveillance. 40.     The Spanish authorities have built a multi-fence barrier along the 13 km land border separating Melilla from Morocco to prevent irregular migrants from accessing Spanish territory. The CPT notes that it was built within Spanish territory and is therefore, on both sides, under the full jurisdiction of Spain. The barrier consists of a six meter high fence, slightly tilted towards Morocco, a three dimensional tow-line followed by a second three meter high fence and, on the other side of a patrol road, another six meter high fence. At regular intervals, gates have been inserted into the fences to enable access through the barrier from both sides. In addition, a sophisticated CCTV system (including infrared cameras) combined with movement sensors has been installed. Most of the fences are also equipped with anti-climbing grids. 41.     On 13 February 1992, Spain concluded a Bilateral Agreement with the Kingdom of Morocco on the movement of persons, transit and readmission of foreign nationals who entered illegally (‘the Readmission Agreement’). According to the Readmission Agreement, ‘following the formal request of the border authorities of the requesting State, border authorities of the requested State shall readmit in its territory the third-country nationals who have illegally entered the territory of the requesting State from the requested State.’ The application for readmission shall be submitted within ten days after the illegal entry into the territory of the requesting State. ... 48.     Groups of foreign nationals of varying sizes – from a few persons to a thousand – attempt, on a regular basis, to access Spanish territory. Regarding the attempts to access Spanish territory by sea, the CPT was informed about an incident that took place on 6 February 2014, which was widely reported in the media. Members of the Guardia Civil fired rubber bullets from the beach at persons who were attempting to swim from Moroccan territory to Melilla and forced them to head back to Morocco. However, not all the persons were able to swim back and it was reported that 15 foreign nationals drowned. As regards attempts to access Spanish territory by climbing the border fences, the delegation received consistent allegations, confirmed by video footage, that irregular migrants were stopped within or right after the border by members of the Guardia Civil , occasionally handcuffed, before being immediately forcibly returned to Morocco without being identified. Several foreign nationals also stated to the delegation that they had been returned to Morocco after being apprehended by the Guardia Civil several hundred meters from the border. It seems that the duty of the Guardia Civil was seen as encompassing apprehending irregular migrants on their way to the CETI in Melilla and forcibly returning them to Morocco. Further, foreign nationals were allegedly sometimes returned to Morocco despite the fact that they were injured and could hardly walk (see also paragraph 51). The CPT considers that such practices of immediately and forcibly returning irregular migrants, without any prior identification or screening of their needs, would be clearly contrary to the principles and standards mentioned above. ... 50. ... the CPT recommends that: -     clear instructions be given to Spanish law enforcement officials to ensure that irregular migrants who have entered Spanish territory will not be forcibly returned to Morocco prior to an individualised screening with a view to identifying persons in need of protection, assessing those needs and taking appropriate action; -     adequate guarantees in this respect be provided in national legislation.” B.     The 2015 annual activity report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe (“the Human Rights Commissioner”), dated 14 March 2016 41 .     The parts of the report of relevance to the present case read as follows: “1.2     Visits Visit to Spain The Commissioner visited Melilla and Madrid from 13 to 16 January 2015 in order to discuss issues pertaining to the human rights of migrants, refugees and asylum ‑ seekers in Ceuta and Melilla, Spain’s territories in Northern Africa. In Melilla, the Commissioner held meetings with the Government’s Delegate, Mr   Abdelmalik El Barkani and the President of the city, Mr Juan José Imbroda Ortiz. He also met with the Head of th