THIRD SECTION

DECISION

Application no. 19420/15 Albert Julio DOUMBE NNABUCHI against Spain

The European Court of Human Rights (Third Section), sitting on 1 June 2021 as a Committee composed of:

Georgios A. Serghides, President, María Elósegui , Andreas Zünd , judges,

and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 13 April 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the further observations submitted by the parties at the request of the Court in view of its judgment in N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, 13 February 2020,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Albert Julio Doumbe Nnabuchi , is a Cameroonian national, born in 1989. He was represented before the Court by Mr J.L. Rodríguez Candela, a lawyer practising in Malaga.

2 . The Spanish Government (“the Government”) were represented by their Agent, Mr A. Brezmes Martínez de Villareal, State Counsel and head of the Human Rights Legal Department at the Ministry of Justice.

3 . The background to this case is substantially the same as in N.D. and N.T. v. Spain [GC] (nos. 8675 /15 and 8697/15, 13 February 2020) , and the summary appearing in that judgment (ibid., §§ 15-20) is thus reproduced here. The autonomous city of Melilla is a Spanish enclave of 12 sq. km located on the north coast of Africa and surrounded by Moroccan territory. It lies on the migration route from North and sub-Saharan Africa which is also used by Syrian migrants. The border between Melilla and Morocco is an external border of the Schengen area and thus provides access to the European Union. As a result, it is subject to particularly intense migratory pressure.

4 . The Spanish authorities have built a barrier along the 13 km border separating Melilla from Morocco, which since 2014 has comprised three parallel fences. The aim is to prevent irregular migrants from accessing Spanish territory. The barrier consists of a six-metre-high, slightly concave fence (“the outer fence”); a three-dimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”). Gates have been built into the fences at regular intervals to provide access between them. A sophisticated CCTV system (including infrared cameras), combined with movement sensors, has been installed and most of the fences are also equipped with anti-climbing grids.

5 . There are four land border crossing points between Morocco and Spain, located along the triple fence. Between these crossings, on the Spanish side, the Guardia Civil has the task of patrolling the land border and the coast to prevent illegal entry. Mass attempts to breach the border fences are organised on a regular basis. Groups generally comprising several hundred aliens, many of them from sub-Saharan Africa, attempt to enter Spanish territory by storming the fences described above. They frequently operate at night in order to produce a surprise effect and increase their chances of success.

6 . Those migrants who do not manage to evade the Guardia Civil , and whom the officials succeed in persuading to come down of their own accord using ladders, are taken back immediately to Morocco and handed over to the Moroccan authorities, unless they are in need of medical treatment .

7 . At the time of the events this modus operandi was provided for only by the Guardia Civil “Border control operations protocol” of 26 February 2014 and by service order no. 6/2014 of 11 April 2014 (see N.D. and N.T. v. Spain , cited above, § 37).

8 . On 1 April 2015 the tenth additional provision of Institutional Law 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) came into force. The additional provision was inserted by means of Institutional Law 4/2015 of 30 March 2015 laying down special rules for the interception and removal of migrants in Ceuta and Melilla (see N.D. and N.T. , cited above, §§ 32 and 33).

9 . The applicant lived in an “informal” migrant camp on Mount Gurugu , close to the Melilla border. He stated that, prior to the incident under consideration, he had attempted to cross the border by scaling the fences on at least six occasions, having been returned to Morocco by the Spanish authorities each time. The applicant is currently residing legally in Spain as a family member of a European Union citizen. The applicant alleged that he had jumped over the fence on 15 October 2014 as described in the following section, while the Government noted the absence of convincing evidence that the applicant had been involved in that incident (see paragraphs 22-23 below).

10 . On 15 October 2014 the applicant, jointly with some 300 other migrants, attempted to enter the autonomous city of Melilla by scaling the border fences. Although significant numbers of them were stopped by Moroccan security forces, approximately 140 migrants managed to reach the top of the outer fence. This attempted crossing had been coordinated among the migrants.

11 . The Spanish forces ( Guardia Civil ) were alerted and formed a security perimeter in the area of the fences where the crossing was taking place, in order to prevent the migrants from entering Melilla. The Red Cross was also called to the site.

12 . The attempt to storm the border fences was organised during the night and lasted well into the following morning. There were various incidents, including aggression towards a police officer on top of a fence and the burning of clothes and other objects, causing dense smoke. The tools (mostly hooks) employed by the migrants to attempt to storm the fences were also used against officers of the Guardia Civil .

13 . The applicant would have been asked to come down from the fence. Although at first he seemed to comply, he subsequently refused to cooperate and was forcibly removed from the fence by law-enforcement officials, falling to the ground. The applicant was apprehended, handcuffed and transported, as he would not move by himself, to a door in the fence, through which he was returned to Moroccan territory. The whole incident was resolved within five to ten minutes. It should be noted that there are significant discrepancies between the parties regarding this specific moment.

14 . There is no record of any medical report regarding injuries suffered by the applicant during the incident. There are reports of other migrants suffering injuries and being attended to by the Red Cross, but the Red Cross did not attend to the applicant. No evidence exists as to whether any information was conveyed to the applicant by the Guardia Civil regarding his personal status. Several officers suffered injuries of varying degrees.

15 . The storming of the border fences and the subsequent events were filmed by journalists and NGOs. Video footage was provided to the Court by the parties.

16 . By decisions of 4 August 2014 and 14 August 2014 of the Melilla investigating judge no. 2, two investigations were launched: the first to ascertain whether the colonel of the Guardia Civil in charge of border security had wilfully issued unlawful orders and the second to ascertain whether there had been any excessive use of force or inappropriate conduct by the Guardia Civil officers concerning other previous attempts to scale the Melilla border fences and extended later also to the events of the present case.

17 . Concerning the first set of proceedings, the Malaga Audiencia Provincial decided on 7 April 2015 that no further action should be taken in so far as the orders given by the colonel of the Guardia Civil had not been wilfully unlawful.

18 . Concerning the second set of proceedings, the judge carried out a full investigation, calling all the Guardia Civil officers as accused parties to the proceedings and questioning witnesses. In these proceedings the applicant was not called to make a statement, as his identity was unknown, nor did he appear voluntarily. However, several associations and NGOs, including PRODEIN, an association which had been in contact with the applicant, acted as private prosecutors in the proceedings. By a decision of 11 August 2015, the investigating judge concluded that no offences had been committed by the Guardia Civil officers and discontinued the second set of proceedings. By a decision of 6 April 2016, the Audiencia Provincial upheld the decision and concluded that the Guardia Civil officers had not used excessive force against migrants at the border. Therefore, the proceedings against the Guardia Civil officers were discontinued.

19 . The applicant did not appear before the Spanish courts, despite the fact that he was represented by legal counsel, who acted in the criminal proceedings referred to above (see paragraphs 16 et seq. below), nor did he make his identity known to the courts.

20 . Concerning the relevant legal framework and practice, the Court refers to N.D. and N.T. v. Spain , cited above, §§ 32-68.

COMPLAINTS

21 . The applicant complained under Article 3 of the Convention, Article 4 of Protocol No. 4 and Article 13 of the Convention that he had been subjected to inhuman treatment by the Spanish authorities at the border fences, and that his expulsion had been a collective one with no effective remedy available against it. He further complained that he had been irregularly detained as he was not properly informed of his rights and was prevented from contesting it.

THE LAW

22 . The Government submitted that the applicant could not be considered to be a “victim” within the meaning of Article 34 of the Convention, as he had not provided convincing evidence to demonstrate that he had taken part in the attempt to enter Spain at the Melilla border on 15 October 2014.

23 . They noted that there was plenty of evidence to support the argument that the applicant had not climbed over the fence that day and that he had misrepresented the facts. In any case, the Government contested the applicant ’ s identity and noted that his name was not Danny, Daniel Williams or anything similar, whereas this was apparently the name of the person appearing in the available video footage. In any event, on the basis of the images provided by the applicant (explaining how the storming of the fences had taken place and giving authority to his lawyer), it was clear that he had had difficulties in writing his own name, and that he had had to correct it to finally add the name of “Daniel” after the name under which he appears before the Court. Moreover, the applicant was wearing an entirely different apparel in the video footages recorded after the 15 October 2014, and had not been able to produce the clothes that the person having participated in the storming of the fences had been wearing during that event, as it was shown in the video footage from that date . The comparison with the video footage also revealed that, contrary to the man appearing in it, the applicant had had no visible wounds on his body and he had not been paralysed. The applicant had apparently contradicted himself with regard to the video footage of the storming of the fences, as he had stated that he had been unconscious the whole time, whereas the videos showed that the man appearing in that video footage as having climbed the fences had been perfectly conscious when handed over to the Moroccan police. Furthermore, there had been no medical reports of any kind regarding the alleged wounds on the applicant ’ s body the day of the attempted crossing because he had neither been taken to a hospital nor examined by a doctor and it seems that the person having participated in the events would have been prescribed some medicines.

24 . The Government also asked the Court to declare the complaint inadmissible for other reasons. They pointed out that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he had failed to address any complaint to the domestic courts, and that the application was abusive in nature as the applicant had failed to inform the Court of some relevant facts.

25 . The applicant disagreed with the Government ’ s assessment. He submitted that his name was in fact the one given to the Court, but that in his country of origin, Cameroon, it was very common to have a nickname, which in his case was Dany Williams. This could be demonstrated by viewing the name appearing on a social network. The applicant asserted that he had been the person who appeared in the video footage and that he had not worn the same clothes at all times . Regarding medical assistance, the applicant stated that a Jesuit priest had accompanied him to the hospital in Nador , but that no written reports had been issued.

26 . The applicant refuted the other objections of the Government as to the admissibility of the application. Regarding the exhaustion of domestic remedies, he submitted that he had not been offered any available remedies and was not properly informed of his rights. As to the relevant facts, he assured the Court he had duly complied with this duty.

27 . As a preliminary issue, the Court observes significant differences in the parties ’ accounts of the facts. The crucial question is therefore whether the Court is persuaded of the truthfulness of the applicant ’ s statements regarding his participation in the storming of the fences on 15 October 2014, notwithstanding the fact that the evidence adduced by him does not appear conclusive (see N. D. and N.T. v. Spain , cited above, § 84).

28 . The Court has set standards regarding the identification of migrants in the event that the State does not provide such identification. According to the Court ’ s case-law (ibid., § 85), the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151). In this context it must be borne in mind that the absence of identification and personalised treatment by the authorities of the respondent State in the present case, which has contributed to the difficulties experienced by the applicant in adducing evidence of his involvement in the events in issue, is at the very core of the applicant ’ s complaint. Accordingly, the Court will seek to ascertain whether the applicant has furnished prima facie evidence in support of his version of events. If that is the case, the burden of proof should shift to the Government (see, mutatis mutandis , El- Masri , cited above, § 152, and Baka v. Hungary [GC], no. 20261/12 , § 149, 23 June 2016 ).

29 . In the present case, the Court observes that the evidence provided by the applicant is insufficient and that furthermore, the Government have provided solid grounds for questioning its validity. In support of his assertions, the applicant provided video footage showing the storming of the fences as described by him, in which he submitted that he could recognise himself. The expert reports provided by the Government, meanwhile, served only to demonstrate the impossibility of identifying the applicant in the footage, although they do not go as far as to exclude it from the outset; however, the applicant himself provided no convincing argument in this regard. The applicant, who appeared before the Court as Albert Julio Doumbe Nnabuchi , has failed to provide any credible evidence demonstrating at least that his nickname corresponds to the identity of Dany Williams, which both parties agree was the name of the person involved in the incident. The applicant has indeed contradicted himself in various aspects, and his account of the events differs from what can be deduced from those same videos.

30 . The Court further observes that the applicant did not appear before the national courts, although his legal counsel acted as a private prosecutor in the criminal cases referred to above (see paragraph 19 above). Indeed, had the applicant appeared before the national courts to challenge the Guardia Civil officers ’ conduct at the border fences, the question of his identity would have been dealt with prior to his application before the Court, and it is the Court ’ s view that the Spanish courts would have been in a better position to deal with this question.

31 . In view of the background to the present case and the above findings, the Court considers that the applicant has not provided prima facie evidence of his participation in the events and that the evidence presented before the Court has been adequately refuted by the Government (see, a contrario , N. D. and N.T. v. Spain , cited above, §§ 86-88). As such, the Court is not satisfied that the applicant did indeed participate in the storming of the border fences in Melilla at issue in the present case, and therefore cannot claim to be a victim within the meaning of Article 34 of the Convention.

32 . Consequently, the application is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention. This conclusion dispenses the Court from addressing the other objections of the Government.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 June 2021 .

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Olga Chernishova Georgios A. Serghides Deputy Registrar President