CRC/C/80/D/4/2016
manages to climb over six-metre high fences cannot be considered to be a minor. Lastly,
the State party submits that Malian consular registration cards, such as the one provided by
the author, are issued without checking the official registers of the accrediting country and
purely on the basis of the foreign national identification number issued by the Spanish
authorities.
4.2
The State party submits that, with regard to the facts allegedly attributable to the
Moroccan authorities, the communication is inadmissible rationae loci under article 5 of
the Optional Protocol.
4.3
The State party also submits that the communication is inadmissible rationae
personae, in accordance with article 1 of the Convention, because the author was 20 years
old at the time of the events. It asserts that the author claimed to be of legal age on two
occasions – on 30 December 2014, at the temporary holding centre for migrants in Melilla,
and on 12 January 2015, at the Melilla police centre for foreign nationals. On both
occasions, the author was informed of his rights in a language he understood and was
assisted by free lawyers but there is no record of him having claimed to be a minor. It adds
that the author claimed to be a minor only after contacting the NGO Fundación Raíces,
which applied to the Malian consulate in Madrid for a consular card on his behalf.
4.4
The State party submits that, in relation to the right to asylum and the right to protect
borders against unlawful entry, the communication is inadmissible rationae materiae
because these rights are not recognized in the Convention.
4.5
The State party further submits that, under article 7 (e) of the Optional Protocol, the
communication is inadmissible on the grounds of failure to exhaust domestic remedies,
given that: (a) the author could have applied for asylum in the countries through which he
travelled (Mauritania and Morocco); (b) he could have applied for asylum in Spain at the
International Protection Office at the Beni Enzar border crossing instead of crossing the
border illegally; (c) he could have applied for a visa to enter and work legally in Spain; 18
and (d) once in Spanish territory, he had access to effective judicial remedies through which
to challenge the administrative decision ordering his expulsion. 19
Author’s comments on the State party’s observations on admissibility
5.1
In his comments of 21 November and 12 December 2016, the author claims that the
State party wrongly interprets this communication as relating to the author’s right to asylum
and to enter Spain. He reiterates that the scope of the communication is limited to the
actions of the Spanish authorities during the hours of 2 December 2014 in which the author
was under Spanish jurisdiction.
5.2
The author submits that the communication is 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 emphasizes that this claim is admitted by the State party in its observations and
in the video of the events that it cites as evidence. He asserts that the State party cannot
arbitrarily and unilaterally curtail its obligations under the Convention by establishing
specific areas or zones that remain wholly or partially outside its jurisdiction. 20 He adds that
he is not claiming that Spain is responsible for the conduct and actions of the Moroccan
authorities, but rather that Spain knew, or should have known, about them.
5.3
The author maintains that the communication is admissible rationae personae
because on 2 December 2014 he was a minor, as evidenced by the passport issued to him
18
19
20
GE.19-07971
The State party provides a copy of the Framework Cooperation Agreement on Immigration concluded
between the Kingdom of Spain and the Republic of Mali.
The State party provides a copy of the administrative deportation file, administrative appeals against
the deportation decision and judgment No. 283/2016 of 13 July 2016 of Melilla Administrative Court
No. 2. All the documents provided refer to Y.D., born in Burkina Faso, on 2 November 1994, to
parents named Saka and Yavi.
The author cites the Committee’s general comment No. 6, paras. 2 and 12. See also para. 3.2 above.
5