CYIL vol. 13 (2022)

VIOLETA VASILIAUSKIENĖ CYIL 13 ȍ2022Ȏ On the question of jurisdiction of state, the ECtHRhas confirmed its previous practice that even the short encounter with the illegal migrants is considered as an exercise of jurisdiction of Spain. The Court acknowledged that “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, […] but did not draw any inferences with regard to the jurisdiction of the States concerned.” 71 Looking at the factual situation, the Court stressed that “the [Spanish] Government referred to the difficulty of managing illegal immigration through the Melilla enclave and, in particular, the storming of the border fences by groups generally comprising several hundred non-nationals. However, they did not allege that this situation prevented them from exercising their full authority over this part of the national territory.” 72 Regarding the meaning of jurisdiction of international law, the Court reiterated that according to international law, the jurisdiction of the state “begins at the line forming the border.” 73 On the other hand, the question of jurisdiction was contested by the respondent State and other intervening states. Spain claimed that “after the introduction of the system of border controls, Spain had limited its “jurisdiction”, which began beyond the police line forming part of “measures against persons who [had] crossed the border illegally” within the meaning of Article 13 of the Schengen Borders Code. In other words, it came into play only at the point where migrants had crossed all three of the fences comprising the system of border controls and had passed the police line. In the Government’s assertion, it was only after that point that Spain was bound by the obligation under the Convention to identify the persons concerned and by the procedural safeguards applicable to expulsion procedures. Were it otherwise, the result would be a “calling effect” liable to degenerate into a humanitarian crisis of major proportions.” 74 Furthermore, the French Government stressed that “ “effective and continuous” control for the purposes of the Court’s case-law implied a certain duration and actual control (physical or in the form of authority) over the persons concerned. A form of control that was confined, as in the present case, to a brief, limited intervention in the context of action to defend the country’s land borders and protect national security could not, in their submission, give rise to extraterritorial application of the Convention.” Furthermore, the Italian government also noted that “applicants had not been staying on the territory of the Spanish State. They stressed that Directive 2008/115/EC (the “Return” Directive) applied only to third country nationals staying illegally on the territory of a member State. They referred to the European Union rules and, in particular, to the Schengen Borders Code which required member States with EU external borders to operate tight border controls.” 75 The Belgian Government submitted that “the facts of the case fell exclusively within the scope of surveillance of the external borders of the Schengen Area. Where a member State operated border controls, it could not be required to admit persons attempting to cross the border illegally. Where such persons were turned back – with or without being intercepted – 71 Ibid ., para. 105. 72 Ibid.

73 Ibid ., para. 109 74 Ibid. , para. 91 75 Ibid. , para. 96.

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