Οι ενάγοντες, υπήκοοι Μάλι, προσπάθησαν επανειλημμένα και τελικά κατάφεραν να μπουν στον Ισπανικό θύλακα της Μελίγια σε ντου μαζί με εκατοντάδες άλλους, οργανωμένα από λαθρέμπορους. Οι Ισπανικές αρχές διέταξαν την απέλασή όλων όσοι συμμετείχαν στο ντου. Οι ενάγονες έκαναν διάφορες ενστάσεις στους επόμενους μήνες, οι οποίες απορρίφθηκαν. Ο ένας όντως επέστρεψε με ισπανική πτήση στο Μάλι, ενώ ο άλλος παραμένει παράνομα στην Ισπανία. Η προσφυγή αφορούσε κυρίως το άρθρο 19 της ΕΔΔΑ που απαγορεύει τις ομαδικές απελάσεις (υποτίθεται θα έπρεπε ο καθένας από αυτούς που συμμετείχαν στο ντου να έχει δικαίωμα να εξεταστεί η αίτησή του πριν βγει διοικητική πράξη απέλασης).
Το δικαστήριο διέλυσε την προσφυγή και μάλιστα οι δύο δικαστές που μειοψήφησαν είχαν άποψη προς το χειρότερο για τους ενάγοντες. Μεταξύ άλλων έλαβε υπόψη τη δυνατότητα που είχαν οι ενάγοντες να ακολουθήσουν τη νόμιμη οδό απευθυνόμενοι στην μαροκινή πρεσβεία της Ισπανίας για άσυλο και κυρίως έλαβε υπόψη τη συμπεριφορά τους, ότι δηλαδή μπουκάροντας μαζί με άλλους προσχεδιασμένα από λαθρέμπορους ουσιαστικά καπηλεύονται το γράμμα του νόμου που απαγορεύει τις ομαδικές απελάσεις για να παραβιάσουν το πνεύμα του.
Ακόμα πιο ενδιαφέρον είναι οι γνώμες των δύο δικαστών που μειοψήφησαν, διότι ήταν ακόμα πιο εχθρικές προς τους ενάγοντες απ' ό,τι η γνώμη της πλειοψηφίας.
Αντιγράφω:
1. Introduction
2. The right of individual application under Article 34 of the Convention (general considerations)
There is no reason not to accept Rawls’s postulate that justice is first and foremost fairness and that in establishing the criteria for justice it is necessary to begin with fairness. This idea is neither new nor revolutionary. Long ago, it was Cicero who, in his “De officiis”, stated: “Fundamentum autem est iustitiae fides, id est dictorum conventorumque constantia et veritas”.
In the quest for justice Rawls’s theory holds much more true in the field of international law than in domestic law, which has substantially more possibilities than international law to enforce the observance of the law. The Vienna Convention on the Law of Treaties, which provides guidelines for the interpretation of international treaties including the Convention, is rightly based on the principle of fairness in international relations.
It is useful to bear in mind that any individual application in which the applicant claims a violation of the Convention by a High Contracting Party not only impacts upon the life of the community of free citizens living on the territory of that particular High Contracting Party, but also affects, either directly or indirectly, the life of the community of free citizens in all the member States of the Council of Europe.
In my opinion, every applicant is thus duty-bound to submit his or her application on genuine and truly substantial grounds. In the course of the ongoing proceedings applicants are further duty-bound to make clear to the Court, not only via their representatives but also through their personal attitude to the case in progress, that they are genuinely convinced that the High Contracting Party has breached their fundamental freedoms or that they were actually unable to exercise their rights guaranteed by the Convention. An applicant may certainly be wrong in his or her interpretation of the Convention, but in any event it must be evident that the application is motivated by a serious intention and that the applicant is committed to pursuing it. If that is not the case, it is the Court’s duty to consider such a situation carefully and, if there are no exceptional circumstances in the applicant’s case (such as illness, mental immaturity, and the like), then it is certainly not appropriate, from the point of view of universal justice, for the Court to deal with the application, not even as regards the question whether the application was justified or not. To my mind, it is therefore necessary to interpret the last sentence of paragraph 1 of Article 37 of the Convention (“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires”) exclusively in relation to the applicant and his or her specific problem and not generally in relation to the issue raised by the applicant, which might possibly entail a violation of the Convention in general rather than concrete terms.
Should the circumstances of the case clearly indicate that the applicant exhibits no real interest in the case at any stage of proceedings before the Court, then in the prospective examination of the case it is impossible to comply with the requirement of adversarial proceedings for the purposes of Article 38 of the Convention (“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities”). The aim must always be the resolution of the case at hand, which must have a serious intention behind it, and not the academic interpretation of an issue raised by the applicant which, as the circumstances of the case may reveal, was not seriously intended by the applicant and does not disclose any serious problem on his or her part. Ours is an international court which must take meticulous care to ensure that it deals with serious cases only.
3. Consideration of this case on the basis of Rawls’s theory
The application was lodged by citizens of two African States which are not amongst the member States of the Council of Europe and have not acceded to the Convention (and cannot do so as they are not European States). Accordingly, both applicants claimed protection of fundamental rights and freedoms that are guaranteed by a community of free citizens of other States on another continent. Citizens of this (European) community fulfil their fiscal duties vis-à-vis their home countries, member States of the Council of Europe, which use the taxes thus collected to pay their contributions to the Council of Europe, including the European Court of Human Rights. The fulfilment of fiscal duties and the payment of contributions by the member States to the Council of Europe are the prerequisites for the very existence of the European human rights protection mechanism for everyone.
It appears that neither of the applicants fulfils his basic duties (including fiscal ones) derived from Article 29 of the African (Banjul) Charter on Human and Peoples’ Rights, which reads as follows:
“The individual shall also have the duty:
1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when the latter is threatened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.”
Both States of which the applicants are citizens have ratified the African (Banjul) Charter on Human and Peoples’ Rights. From the point of view of general fairness, it must therefore necessarily be assumed that the applicants find themselves in an exceptional situation that renders it justifiable for them not to fulfil their essential duties vis-à-vis their home country and their continent. Only if such an exceptional situation exists is it possible to imagine that the applicants could claim protection of fundamental rights and freedoms guaranteed by a community of free citizens of other States on another continent. Likewise, their attitude to the process of being granted protection of those rights and freedoms must show cognisance of the exceptional nature of the situation. Otherwise, the applicants’ conduct would be entirely lacking in the fundamental elements of fairness; in such a case it is inconceivable, in my view, that they should seek justice in the field of international law.
4. Brief recapitulation of the facts of the case
Two young men – the applicants – left their home countries on the African continent. The alleged reasons for their doing so are known to the Court only through the mediated submissions prepared by their lawyers. The objective existence of those reasons is impossible to assess owing to the almost total lack of evidence. All that is known for certain is that after leaving their home countries they spent some time in Morocco, a State which from the perspective of international law is considered to be safe, and which on 30 January 2017 rejoined the African Union. The fundamental question which, in my opinion, the majority should have addressed is the reason why the two young men – the applicants – did not try to resolve their allegedly unfavourable situation in their home countries while in Morocco, by lodging an application with the African Court on Human and Peoples’ Rights. That court could have examined the applicants’ situation directly in relation to their home countries, as the latter are members of the African Union and, as mentioned above, have ratified the African (Banjul) Charter on Human and Peoples’ Rights.
But instead of trying to resolve their allegedly unfavourable situation by the means indicated above, the applicants purportedly tried to climb illegally over a boundary fence between Morocco and Spain’s territory in Africa. According to the application submitted by their lawyers, they were sent back to Moroccan territory by the Spanish security forces. As I see it, there is no objective evidence that the applicants climbed over the fence, or, more precisely, no such evidence was produced by the applicants’ lawyers.
Several months later one of the applicants officially requested Spain to grant him asylum. Presumably there was nothing to prevent him from taking this legal course of action any time before. He was not granted asylum, because no reasons to do so were found in regular asylum proceedings.
One of the applicants returned to his home country and his whereabouts have been unknown for more than four years. However, his lawyers are allegedly in contact with him, albeit not in person. According to his lawyers, the other applicant has been somewhere in Spain for the past four years. The lawyers claim to be in contact with him as well, albeit not in person. According to the lawyers, both applicants insist that the Court should examine their case, in which they claim that Spain violated Article 4 of Protocol No. 4 to the Convention.
5. Consideration of the case under Article 37 § 1 (a) of the Convention
From a formal perspective it is necessary to take account of Rule 47 § 7 of the Rules of Court, according to which “[a]pplicants shall keep the Court informed of any change of address and of all circumstances relevant to the application”. Why? Because neither the applicants nor their lawyers have fulfilled this obligation over the long term. This obligation – one of the few obligations applicants have vis-à-vis the Court, and also vis-à-vis the European community of free citizens – cannot be satisfied by a declaration from the lawyer that he is in contact with his client but that his client does not have a permanent address or he does not know his client’s permanent address. From this situation alone – which, moreover, has lasted for more than four years – the Court can, and I think must, infer that the circumstances lead to the conclusion that the applicant does not intend to pursue his application.
6. Consideration of the case under Article 37 § 1 (c) of the Convention
There is not the slightest doubt that the climbing of the fence, whether the applicants participated in it or not, was contrary not only to the legal order of Spain but also to customary international law. The Spanish security forces did not imperil the health, life, dignity or freedom of any of the participants. The Court, before examining the question whether the complaint concerning the climbing of the fence was admissible or not in the light of Article 4 of Protocol No. 4 to the Convention, could and should, in my opinion, have dealt with the question whether this concrete fact should give rise to the application of Article 37 § 1 (c) to the Convention, which provides for an application to be struck out of the list of cases where the circumstances lead to the conclusion that it is no longer justified to continue the examination of the application.
Both applicants explained their illegal conduct on Morocco’s border with Spain by their intention to request asylum in Spain owing to their unfavourable situation in their home countries. However, they did not explain why from the very beginning they did not choose the legal course of action consisting in seeking asylum. Moreover, they found themselves on the territory of another African State – Morocco – which from the perspective of international law is a safe country. They had a unique opportunity to turn to the African Court on Human and Peoples’ Rights, as indicated above. As they did not do so, I consider that in this specific situation it would have been more logical for the Court to proceed under Article 37 § 1 (c) of the Convention.
The European Court of Human Rights should not inquire into the alleged consequences (in this case the climbing of the fence) of an allegedly inhuman situation (the alleged conditions in the home countries of both applicants) in a situation where another international human rights court clearly has jurisdiction. In my view, practically speaking and allowing for a touch of overstatement, the Spanish security forces committed one small mistake. When returning all the persons involved in the climbing of the fence back to Moroccan territory, they could have informed them that if they were not satisfied with the situation of human rights protection in their home countries, they could bring an action before the African Court on Human and Peoples’ Rights, which was competent in the matter.
I am aware that the above assessment of the case represents a totally different and new approach to the consideration of applications brought before the European Court of Human Rights. I believe that I am right in considering that Article 37 of the Convention deserves a far deeper examination by the Court and, especially, an exact interpretation as described above. I am of the opinion that both applications could have been struck out of the list of cases even before the Grand Chamber hearing, on the grounds that it was no longer justified to continue the examination of the applications. The majority did not share this opinion and, therefore, being aware of this fact, I voted with the majority by way of compromise. The approach taken is also a way of resolving the case, albeit, in my view, less effectively. Nonetheless, I considered it important to clarify my point of view, as the reasons why I eventually agreed with the wording of this judgment were somewhat different from those of the majority.