Devoluciones en caliente a la luz de la doctrina de la conducta culpable: el asunto N.D. y N.T. contra España ante el Tribunal Europeo de Derechos Humanos

This commentary analyses the legal arguments issued by the Grand Chamber of the ECHR in the case N.D. and N.T. against Spain. Through a cross-examination of the Court’s case-law and recent scholarly writings, this work carries out a detailed study of the legal bases of an unprecedented judgment. The ruling rejects the applicability of the protection of Article 4 of Protocol 4 of the ECHR (which prohibits collective expulsions) to the applicants, handed over by the Civil Guard to the Moroccan authorities after crossing the border through the Melilla fence. By conditioning the State’s obligation to respect the principle of non-refoulement to the applicants’ conduct and to the existence of objective impediments to enter the country through the existing procedures, the Court departs from its own legacy with an unsuccessful attempt to find a legal justification to hot returns.