D.D. v. Spain

• CRC

Convention on the Rights of the Child: Articles 3, 20 and 37

Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Articles 5 and 7 paragraph e

General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin; General Comment No. 13 (2011) - The right of the child to freedom from all forms of violence; General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3 paragraph 1); Joint General Comment No. 3 of the CMW and No. 22 of the CRC in the context of International Migration: General principles; and Joint General Comment No. 4 of the CMW and No. 23 of the CRC in the context of International Migration: States parties' obligations in particular with respect to countries of transit and destination

Committee against Torture General Comment No. 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22

The author of the communication is D.D., a Malian citizen born on 10 March 1999.

D.D. tried on several occasions to cross the border between Melilla and Morocco. On March 2014, he was beaten by Moroccan security forces while trying to access the first fence. On 2 December 2014, the author and a group of people attempted to enter Melilla. He managed to climb the Spanish border fence structure and remained on top for hours without receiving any kind of assistance from the Spanish authorities. Finally, he climbed down the fence with the help of a ladder provided by a Civil Guard. As soon as he set foot on the ground, he was arrested and handcuffed by the Civil Guard, handed over to the Moroccan forces and summarily deported to Morocco. At no time was his identity checked. He was also denied the opportunity to explain his personal circumstances, give his age, challenge his imminent deportation or claim protection as an unaccompanied child. He was not assisted by lawyers, interpreters or doctors. After being released by the Moroccan security forces, the author returned to Mount Gurugú.

On or around about 30 December 2014, the author entered Spain through Melilla and went to stay in the temporary reception centre for migrants. In February 2015, he was transferred from the enclave of Melilla to mainland Spain. At the end of July 2015, through the assistance of an NGO, and the consular registration card issued to him by the Malian consulate in Madrid, which showed his date of birth as 10 March 1999, the author obtained protection as an unaccompanied child and was placed in a residential centre for children under the care of the Spanish authorities.

The author claimed to be a victim of violations of Articles 3 (best interests of the child), 20 (special protection and assistance of children deprived of family environment), and 37 (right to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment) of the Convention.

The author alleged a violation of Article 20 paragraph 1 (special protection for children deprived of their family environment by State), in that he was not afforded the protection he was entitled to receive from the State party as an unaccompanied child deprived of his family environment. He recounted that when the Spanish Civil Guard in Melilla arrested him, handcuffed him and returned him to Morocco on 2 December 2014, his identity was not checked, no assessment of his protection needs was carried out and he was not given the opportunity to explain his personal circumstances.

The author also alleged a violation of Article 37, in that the Spanish authorities deported him to Morocco without procedure or prior assessment of any kind and exposed him to a risk of irreparable harm. The author maintained that, in accordance with the principle of non-refoulement, and before summarily deporting him, the State party should have ascertained whether there were substantial grounds for believing that there was a real risk of irreparable harm to the author in Morocco. The author emphasized that, as part of this assessment, the Spanish authorities should have taken into account his age and vulnerable situation.

The author submitted that the State party did not, at any time, take into account the best interests of the child recognized in Article 3, in that: (a) it failed to consider how its State policy and standard practice of indiscriminate summary deportations impacted on the best interests of unaccompanied children (b) it did not allow the author to enter Spanish territory and did not take any steps to verify his identity, assess his situation and protect him as an unaccompanied child and (c) the Spanish Civil Guard did not take the author’s personal circumstances into account, but instead arrested him, handcuffed him and summarily deported him to Morocco without considering any other alternative that would be in his best interests.

On 30 August 2016, Spain submitted its observations concerning admissibility. It expressed that the communication was inadmissible on grounds of rationae personae, because D.D. initially declared to be of legal age after entering Spain and the author of the communication was not the same person who was returned by the Spanish authorities in December 2014; of rationae loci, because Spain could not be held responsible for the actions of the Moroccan authorities; and for rationae materiae, because the communication referred to the right of asylum of the author which was not contemplated in the Convention on the Rights of the Child. The State party also contended that the communication was inadmissible because the author had not exhausted domestic remedies.

On 21 November and 12 December 2016, the author submitted that the communication was admissible rationae loci because he entered Spanish territorial jurisdiction as soon as he crossed the first fence of the Melilla border crossing and was thus under the effective control of members of the Spanish Civil Guard in Melilla when they arrested him, handcuffed him and returned him to Morocco. The author maintained that the communication was admissible rationae personae because on 2 December 2014 he was a child, as evidenced by the passport issued to him by the Malian consulate in Madrid on 3 October 2015. The author further submitted that the communication was admissible rationae materiae because his claims were not based on his right to asylum.

In its observations of 22 March 2017, the State party argued that the person who entered Spain on 30 December 2014 was not the child, and author of this communication, who had been receiving official assistance from the Spanish authorities. The State party noted that the passport submitted by the author was issued on 3 October 2015 and included a photograph of him that was taken when he was already residing in Spain and receiving assistance from the Spanish child protection authorities.

On 5 May 2017, the author claimed that the State party had made contradictory allegations. He pointed out that, in its initial observations, the State party claimed that the author was the same person as the one who was registered at the temporary reception centre for migrants and at Melilla police centre on 30 December 2014 and that he was not a child. However, in its additional observations, the State party argued that the author was not the same person as the one registered by the Spanish authorities on 30 December 2014. The State party contradicted itself so as not to focus on the author’s summary deportation on 2 December 2014, which was the only issue to which the present communication related.

On 14 May 2018, the State party maintained that the facts presented by the author in his initial communication were “a gross manipulation” because: (a) On the date on which he submitted the present communication, the author had already been officially recognized as a minor by the Spanish authorities, who had accepted the original birth certificate submitted by him as sufficient proof “even though no biometric data were provided, since the certificate was assessed in conjunction with an assessment as to whether or not he appeared to be a minor”; and (b) The author wanted the Committee to confuse the author with Y.D., who was a different person with a similar first and family name but a different nationality (Burkina Faso), who was of full legal age (born on 2 November 1994) and took part in an illegal assault on the Melilla border fence in early December 2014. It claimed that Y.D. was registered as an adult at the temporary reception centre for migrants in Melilla on 10 December 2015. The State party requested the Committee to discontinue its consideration of the communication given that the Spanish authorities had recognized the author as a child under the guardianship of the Community of Madrid without there having been any violation of his rights at the time of submission of the communication. The State party cited the case of R.L. v. Spain, in which the Committee decided to discontinue consideration of the communication because it was proved that the author was already considered and treated as a child by the Spanish authorities.

On 31 July 2018, the author reiterated his arguments regarding the admissibility and the merits of the communication.

On 31 May 2018, the International Commission of Jurists, the European Council on Refugees and Exiles, the AIRE Centre and the Dutch Council for Refugees submitted a third-party intervention. The third party argued amongst others that the State had to grant access to its territory to children at its border who were subject to its authority or effective control, as a prerequisite to the initial assessment process. They added that children should have the opportunity to present meaningful objections to their potential expulsion, as required by the principle of non-refoulement and the prohibition of collective expulsions. They further added that, in accordance with the Convention on the Rights of the Child, the State had to allow children access to its territory as a prerequisite to the initial assessment process in order to fulfil its obligations under Articles 3, 20 and 37 of the Convention.

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Consideration of admissibility

The Committee found that the communication was admissible. The Committee held that due to the immediate execution of the expulsion and the absence of a formal order that could have been challenged by the author, there was no need to exhaust domestic remedies as they were not available.

Consideration of the merits

The Committee held that the facts revealed a violation of Articles 3 (best interests of the child), 20 (special protection and assistance of children deprived of family environment) and 37 (right to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment) of the Convention.

The Committee considered that the substantial question was whether the immediate return of D.D. by the Spanish Civil Guard to Morocco on December 2, 2014, violated his rights recognized in Articles 3, 20 and 37. The Committee held that the lack of a process of identification and evaluation of the situation of D.D. prior to his deportation, and the lack of opportunity to object to his eventual deportation, violated his rights contemplated in Articles 3 and 20 of the Convention.

The Committee held further that the failure to provide special protection and assistance to D.D as an unaccompanied child and the lack of initial assessment to determine his best interest prior to making a decision to return him to Morocco, violated Article 20 of the Convention. Furthermore, the absence of any risk assessment to prevent irreparable damage to D.D. before deciding his deportation and not having taken into account his best interests violated Articles 3 and 37 of the Convention. The manner in which the deportation was executed, with D.D. arrested and handcuffed and returned without being heard and receiving legal and translation assistance, constituted prohibited treatment under Article 37 of the Convention.

The Committee decided that Spain should provide adequate reparation to D.D., including financial compensation and rehabilitation for the damage he suffered. In addition, it considered that Spain should take measures to prevent similar breaches of the Convention in the future, in particular by amending Law 4/2015 and the special regime for Ceuta and Melilla to end the indiscriminate practice of automatic expulsions at the border.

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