CRC/C/80/D/4/2016
were substantial grounds for believing that there was a real risk of irreparable harm to the
author in Morocco. The author emphasizes that, as part of this assessment, the Spanish
authorities should have taken into account his age and vulnerable situation 11 and the
particularly serious consequences that inadequate food and health services might cause in
his case.12
3.5
Finally, the author submits that the State party, by its action and omission, 13 did not
at any time take into account the best interests of the child recognized in article 3 of the
Convention in that: (a) it failed to consider how its State policy and standard practice of
indiscriminate summary deportations impacts on the best interests of the group of
unaccompanied minors assembled at the Spanish-Moroccan border in Melilla, including the
best interests of the author, as a member of this group; 14 (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; 15 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.
3.6
The author proposes, as possible reparation measures, that the State party: (a) amend
or repeal Organic Act No. 4/2015 on safeguarding the security of citizens, and in particular
its tenth additional provision on the special regime applicable in Ceuta and Melilla, so as to
include a specific reference to the need to comply with the provisions of the Convention
and to ensure that children at the border undergo identity checks; (b) create and implement
a special protocol for the use of the Spanish Civil Guard in Melilla and Ceuta that includes
specific measures for the identification and protection of children at the border; and (c)
grant financial compensation to the author and take steps to provide for his rehabilitation, if
necessary.
State party’s observations on admissibility
4.1
In its observations of 30 August 2016, the State party specifies, with regard to the
facts, that when the author entered Spain on 30 December 2014 he gave a different name –
Y.D. rather than D.D. – and different nationality and said that he was of full legal age. 16 It
submits that the State party cannot be held responsible for the events that occurred during
the brief period17 in which, on 2 December 2014, the Spanish authorities exercised their
legitimate right and international obligation to repel the author’s assault on and unlawful
attempt to breach the border crossing. It adds that the incident was not a deportation
because the author was not able to complete his attempt to enter Spain illegally. The State
party also states that, on 2 December 2014, the author did not have any form of identity
document in his possession, exchanged not a single word with the Spanish Civil Guard in
Melilla, “did not at any time claim to be a minor and did not appear to be one”. It maintains
that, in the absence of any express claim or any form of identity document, a person who
11
12
13
14
15
16
17
4
The author cites European Court of Human Rights, P. and S. v. Poland (application No. 57375/08),
decision of 30 October 2012; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (application No.
13178/03), decision of 12 January 2007, para. 69; and Rahimi v. Greece (application No. 8687/08),
decision of 5 July 2011, paras. 92–94.
The author cites the Committee’s general comment No. 6, para. 27.
The author cites the Committee’s general comment No. 14 (2013) on the right of the child to have his
or her best interests taken as a primary consideration, paras. 17–18.
Ibid., para. 19.
The author cites the Committee’s general comment No. 6, paras. 2, 84 and 87.
The State party provides copies of the identification cards issued to Y.D. by the temporary reception
centre for migrants in Melilla (with a photo in which the author’s face is not clear) and the Melilla
police centre (with a photo in which his face is clear). These show date of entry into Spain (30
December 2014), date of birth (2 November 1994), country of birth (Burkina Faso) and parents’
names (Saka and Yavi).
The State party cites, and provides a link to, a video produced by the NGO Prodein, purely, it
indicates, with the aim of illustrating the practice of refusing admission at the border. The State party
refers to the period of less than one minute in this video in which the Spanish Civil Guard are shown
detaining, handcuffing and returning the author to the other side of one of the fences at the Melilla
border crossing.
GE.19-07971