EGMR

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105. As a State's jurisdiction is presumed to be exercised throughout its territory, the question to be addressed is whether the Spanish State may, by invoking exceptional circumstances as it has done, alter or reduce the extent of its jurisdiction by claiming an "exception to jurisdiction" applicable to the part of its territory where the events in issue took place.

106. In that regard the Court observes at the outset that its case-law precludes territorial exclusions (see Matthews, cited above, § 29, and Assanidze, cited above, § 140) other than in the instance referred to in Article 56 § 1 of the Convention (dependent territories), which is not applicable in the present case. However, it has previously acknowledged that the States which form the external borders of the Schengen area are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, ECHR 2011; Hirsi Jamaa and Others, cited above, § 122; and Sharifi and Others, cited above, § 176), but did not draw any inferences with regard to the jurisdiction of the States concerned. [...]

108. Hence, the Court cannot discern any "constraining de facto situation" or "objective facts" capable of limiting the effective exercise of the Spanish State's authority over its territory at the Melilla border and, consequently, of rebutting the "presumption of competence" in respect of the applicants (see Ilasçu and Others, cited above, §§ 313 and 333).

109. The Court further reiterates that the concept of "jurisdiction" for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law (see Ilasçu and Others, cited above, § 312, and Assanidze, cited above, § 137). Under that law, the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction, which begins at the line forming the border. Furthermore, as regards the argument of some of the third-party interveners that EU law required member States to protect the EU's external borders under the Schengen Borders Code (see paragraph 45 and 46 above), the Court observes that Articles 1, 2(2)(a) and 4(3) and (4) of the Return Directive make clear that States may adopt or maintain provisions that are more favourable to persons to whom it applies, without their decisions and actions in that regard coming within the European Union's sphere of competence (see paragraph 47 above). Furthermore, this EU legislation does not affect Spanish jurisdiction under international law. Besides, as is stipulated in Article 27 of the Vienna Convention on the Law of Treaties, the provisions of internal law may not be invoked as justification for failure to perform a treaty (see paragraph 61 above).

110. Furthermore, the Court has previously stated that the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 178). As a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, ECHR 2011), the Convention cannot be selectively restricted to only parts of the territory of a State by means of an artificial reduction in the scope of its territorial jurisdiction. To conclude otherwise would amount to rendering the notion of effective human rights protection underpinning the entire Convention meaningless (see Assanidze, cited above, § 142).

111. Accordingly, the events giving rise to the alleged violations fall within Spain's "jurisdiction" within the meaning of Article 1 of the Convention. Consequently, the Court dismisses the Government's objection as to lack of jurisdiction. [...]

207. In the present case the applicants were not identified, as no written procedure was undertaken on 13 August 2014 to examine their individual circumstances. Their return to Morocco was therefore a de facto individual but immediate handover, carried out by the Spanish border guards on the sole basis of the Guardia Civil's operations protocol (see paragraph 37 above). [...]

209. With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution.

210. However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive, paragraph 49 above). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons (as described in paragraph 201 above), to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force.

211. The Court must therefore ascertain whether the possibilities which, in the Government's submission, were available to the applicants in order to enter Spain lawfully, in particular with a view to claiming protection under Article 3, existed at the material time and, if so, whether they were genuinely and effectively accessible to the applicants. In the event that this was the case and the applicants did not make use of these legal procedures, but instead crossed the border in an unauthorised manner (in this instance taking advantage of their large numbers and using force), only the absence of cogent reasons (as described in paragraph 201 above) preventing the use of these procedures could lead to this being regarded as the consequence of the applicants' own conduct, justifying the fact that the Spanish border guards did not identify them individually.

212. In this regard, the Court notes that Spanish law afforded the applicants several possible means of seeking admission to the national territory, either by applying for a visa (see paragraph 115 above) or by applying for international protection, in particular at the Beni Enzar border crossing point, but also at Spain's diplomatic and consular representations in their countries of origin or transit or else in Morocco (see sections 21 and38 of Law 12/2009, cited at paragraph 34 above, and Articles 4, 16 and 29 (4) of Royal Decree 203/1995, cited at paragraph 35 above). The availability and actual accessibility of these legal avenues in the applicants' case were discussed in detail in the Grand Chamber proceedings, including at the hearing. [...]

217. Consequently, the mere fact – not disputed by the Government - that only very few asylum requests were submitted at Beni Enzar prior to 1 September 2014 (see paragraph 213 above) does not allow the conclusion that the respondent State did not provide genuine and effective access to this border crossing point. The applicants' general allegation in their pleadings before the Grand Chamber that "at the material time, it was not possible for anyone to claim asylum at the Beni Enzar border post", is insufficient to displace this conclusion. [...]

221. The Court stresses that the Convention is intended to guarantee to those within its jurisdiction not rights that are theoretical and illusory, but rights that are practical and effective (see paragraph 171 above). This does not, however, imply a general duty for a Contracting State under Article 4 Protocol No. 4 to bring persons who are under the jurisdiction of another State within its own jurisdiction. In the present case, even assuming that difficulties existed in physically approaching this border crossing point on the Moroccan side, no responsibility of the respondent Government for this situation has been established before the Court.

222. This finding suffices for the Court to conclude that there has been no violation of Article 4 of Protocol No. 4 in the present case. The Court notes the Government's submission to the effect that, in addition to being afforded genuine and effective access to Spanish territory at the Beni Enzar border crossing point, the applicants also had access to Spanish embassies and consulates where, under Spanish law, anyone could submit a claim for international protection. As the Court has already found that the respondent State provided genuine and effective access to Spanish territory at Beni Enzar at the material time, it is not required to take a position in the present case on whether or to what extent such embassies and consulates would have brought the applicants within the jurisdiction of Spain, if they had sought international protection there, and whether these embassies and consulates would thus also have been capable of providing them with the required level of access. However, in the light of the Government's reliance on these procedures and the detailed submissions received, the Court will proceed to consider this issue. [...]

229. However that may be, for the reasons set out above (see paragraphs 213-220 above), the Court is not convinced that the respondent State did not provide genuine and effective access to procedures for legal entry into Spain, in particular by an application for international protection at the Beni Enzar border post, and that the applicants had cogent reasons based on objective facts for which the respondent State was responsible, not to make use of those procedures. [...]

231. In the light of these observations the Court considers that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group's large numbers and using force. They did not make use of the existing legal procedures for gaining lawful entry to Spanish territory in accordance with the provisions of the Schengen Borders Code concerning the crossing of the Schengen area's external borders (see paragraph 45 above). Consequently, in accordance with its settled case-law, the Court considers that the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct (see references in paragraph 200 above). Accordingly, there has been no violation of Article 4 of Protocol No. 4.

232. However, it should be specified that this finding does not call into question the broad consensus within the international community regarding the obligation and necessity for the Contracting States to protect their borders – either their own borders or the external borders of the Schengen area, as the case may be – in a manner which complies with the Convention guarantees, and in particular with the obligation of non-refoulement. In this regard the Court notes the efforts undertaken by Spain, in response to recent migratory flows at its borders, to increase the number of official border crossing points and enhance effective respect for the right to access them, and thus to render more effective, for the benefit of those in need of protection against refoulement, the possibility of gaining access to the procedures laid down for that purpose. [...]

241. In so far as the applicants complained of the lack of an effective remedy by which to challenge their expulsion on the grounds of its allegedly collective nature, the Court notes that, although Spanish law provided a possibility of appeal against removal orders at the border (see paragraphs 32 et seq. above), the applicants themselves were also required to abide by the rules for submitting such an appeal against their removal.

242. As it stated previously in examining the complaint under Article 4 of Protocol No. 4 (see paragraph 231 above), the Court considers that the applicants placed themselves in an unlawful situation by deliberately attempting to enter Spain by crossing the Melilla border protection structures on 13 August 2014 as part of a large group and at an unauthorised location. They thus chose not to use the legal procedures which existed in order to enter Spanish territory lawfully, thereby failing to abide by the relevant provisions of the Schengen Borders Code regarding the crossing of the external borders of the Schengen area (see paragraph 45 above) and the domestic legislation on the subject. In so far as the Court has found that the lack of an individualised procedure for their removal was the consequence of the applicants' own conduct in attempting to gain unauthorised entry at Melilla (see paragraph 231 above), it cannot hold the respondent State responsible for not making available there a legal remedy against that same removal. [...]