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The case of D.D. v. Spain. Views of the Committee on the Rights of the Child dated February 1, 2019. Communication No. 4/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The Committee considered that, in view of the violence suffered by migrants near the border with Morocco and the ill-treatment faced by the author, the failure to assess the possible risk of irreparable harm to the minor author before deportation and the failure to comply with the principle of ensuring his best interests violated articles 3 and 37 of the Convention on the Rights of the Child. The Committee also concluded that the fact that the author, in his capacity as an unaccompanied child, did not undergo the identification and assessment procedure before deportation and that he was not given the opportunity to protest it violated his rights under articles 3 and 20 of the Convention. The Committee considered that the manner in which the author was deported as an unaccompanied child deprived of a family environment in the context of international migration - detained and handcuffed, without being heard, without receiving legal assistance or the assistance of an interpreter and without taking into account his needs - constituted treatment prohibited under article 37 of the Convention.
As seen from the text of the Views, the author claimed that he was a victim of a violation of article 20, paragraph 1, of the Convention on the Rights of the Child due to the lack of adequate protection by the State party in relation to him as an unaccompanied child deprived of a family environment. He noted that on December 2, 2014, when Spanish Civil Guard officers detained him in Melilla, handcuffed him and returned to Morocco, he did not undergo any identification procedure, his protection needs were not assessed and he was not given the opportunity to talk about his personal circumstances. He also claimed that none of the Civil Guard officers had even asked his name, age or whether he was in any danger before returning him to Morocco (paragraph 3.1 of the Considerations).
The Committee's legal position: The State's obligations to provide special protection and assistance to unaccompanied children under article 20 of the Convention on the Rights of the Child "apply, inter alia, to those children who fall under its jurisdiction trying to enter the country's territory." The Committee considers that "one of the positive aspects of these protection obligations also requires States to take all necessary measures to identify unaccompanied or separated children at the earliest possible stage, including at the border." Thus, in order for the State to comply with its obligations under article 20 of the Convention and to respect the principle of the best interests of the child, it is essential and necessary that, before any transfer or return of a person, the State party carry out an initial assessment, including the following steps:
- a) priority identification of unaccompanied minors; in case of doubt, the issue should be resolved in favor of the person in question, that is, if there is a possibility that this person is a child, then she or he should be treated as such;
(b) Identification of the minor on the basis of an initial interview; and
(c) assessment of the specific situation in which the minor is located and the factors of special vulnerability, if any (paragraph 14.3 of the Considerations).
In fulfilling its obligations under article 37 of the Convention on the Rights of the Child, in order to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment, the State should not expel the child to a particular country if there are serious grounds to believe that irreparable harm may be caused to him. In the light of the above, the Committee considers that, in accordance with article 37 of the Convention and the principle of non-refoulement, the State is obliged to conduct a preliminary assessment of the risk of irreparable harm to the child and serious violations of his rights in the country to which he will be transferred or returned, respecting the principle of the best interests of the child and taking into account, inter alia, "particularly serious consequences malnutrition or insufficient medical services for children." In particular, the Committee recalls that in the context of assessing the situation from the point of view of the best interests of the child and determining how this can be done, children should be guaranteed the right of access to the territory of the country, regardless of the availability or absence of documents, as well as the right to transfer to the authorities responsible for assessing the needs of children in terms of their protection rights with the provision of their procedural guarantees (paragraph 14.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: it was established that on December 2, 2014:
(a) The author arrived in Spain as an unaccompanied child deprived of his family environment;
(b) The author spent several hours on top of the barrier at the border checkpoint in Melilla, without receiving any assistance from the Spanish authorities;
- c) As soon as he came down from the fence, Spanish Civil Guard officers detained him, handcuffed him and returned him directly to Morocco;
(d) Between the time the author descended from the barrier and his return to Morocco, he did not receive any legal assistance or the assistance of an interpreter in order to be able to explain himself; he did not undergo an initial assessment procedure to establish his status as an unaccompanied child and did not receive appropriate treatment in case of doubt; his His identity was not established, he was not interviewed or asked about his specific personal circumstances and/or whether he was in a vulnerable position at that time (paragraph 14.5 of the Considerations).
Note has been taken of the State party's contention that the principle of non-refoulement is inapplicable in this case, since it applies only if the person concerned arrives from a territory where he or she is at risk of persecution. However, the Committee reaffirmed the State party's obligation not to expel a child to a particular country if there are serious grounds to believe that irreparable harm may be caused to him. The Committee noted that, prior to the complainant's return to Morocco, the State party had not established his identity, had not asked about his personal circumstances and had not carried out a preliminary assessment of the risk of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considered that, in the light of the violence suffered by migrants near the border with Morocco and the mistreatment faced by the author, the failure to assess the possible risk of irreparable harm to the author before deportation and the failure to comply with the principle of ensuring his best interests violated articles 3 and 37 of the Convention on the Rights of the Child (paragraph 14.6 of the Views).
The Committee also concluded that the fact that the author, in his capacity as an unaccompanied child, did not undergo the identification and assessment procedure before deportation and that he was not given the opportunity to protest it violated his rights under articles 3 and 20 of the Convention (paragraph 14.7 of the Views).
The Committee considered that the manner in which the author was deported as an unaccompanied child deprived of a family environment in the context of international migration - detained and handcuffed, without being heard, without receiving legal assistance or the assistance of an interpreter and without taking into account his needs - constituted treatment prohibited under article 37 of the Convention on the Rights of the Child the child (paragraph 14.8 of the Considerations).
The Committee's conclusion: the available facts indicated a violation of articles 3, 20 and 37 of the Convention on the Rights of the Child (paragraph 14.9 of the Views).
The case is "A.M. v. Switzerland". Views of the Committee on the Rights of the Child dated September 22, 2021. Message No. 95/2019. The State party, aware of the lack of citizenship of M.K.A.H. (the author's son), should have taken all necessary measures to ensure that he would be able to obtain citizenship if he returned to Bulgaria. The Committee concluded that if returned to Bulgaria, M.K.A.H.'s rights under article 7 of the Convention on the Rights of the Child would be violated. The Committee took note of the author's claim that the State party violated article 12 of the Convention because the national authorities did not hear M.K.A.H. (who was 11 years old at the time) during the examination of the asylum application. The Committee considered that the absence of a direct interview with the child constituted a violation of article 12 of the Convention. Taking into account the investigated circumstances of the case, the Committee concluded that the return of M.K.A.H. to Bulgaria would constitute arbitrary interference with his personal life in violation of his rights under article 16 of the Convention.
As seen from the text of the Considerations, the author argued that the rights of M.K.A.H. (the author's son) provided for in articles 2 (paragraph 2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 of the Convention will be violated by the State party if it He was deported to Bulgaria, where he faces a real threat of inhuman and degrading treatment (paragraph 3.1 of the Considerations).
The Committee's legal position: The Convention on the Rights of the Child recognizes the interdependence and importance of all rights (civil, political, economic, social and cultural) in providing all children with the opportunity to develop their mental and physical abilities, individuality and talents to the maximum extent possible (paragraph 9.6 of the Considerations).
General comment No. 6 (2005) of the Committee on the Rights of the Child provides that States should not return a child to a particular country if there are serious grounds to believe that there is a real risk that irreparable harm may be inflicted on him, for example, but not exclusively, such as stipulated in articles 6 and 37 of the Convention on the Rights of the Child; and that such obligations to refrain from forced return (non-refoulement) apply regardless of whether serious violations of the rights guaranteed in the Convention are committed by non-State actors and whether these violations are purposeful or are an indirect consequence of certain actions or omissions. The degree of danger of such serious violations should be assessed taking into account the factors of age and gender. This assessment should be carried out in accordance with the principle of prudence and, if there are reasonable doubts that the receiving State can protect the child from such threats, States parties should refrain from deporting the child (paragraph 10.4 of the Considerations).
One of the most important considerations to be taken into account when making decisions regarding the deportation of a child should be to ensure the best interests of the child and that such decisions should be made in accordance with a procedure providing due process guarantees that, upon return, the child will be provided with safety and the necessary care and opportunities to exercise his rights. The Committee also recalls that the burden of proof cannot be placed solely on the author of the communication, especially since the author and the State party do not always have equal access to evidence and often only the State party has relevant information (paragraph 10.5 of the Views).
The mental health of the mother, the main person for the child who cares for him, is essential for the harmonious development and survival of the child (paragraph 10.8 of the Considerations).
Article 12 of the Convention guarantees the right of the child to be heard in any judicial or administrative proceedings affecting him. The Committee recalls that after the child decides to be heard, he will have to determine how he wants to be heard: either directly or through a representative or an appropriate body. In addition, this article does not establish any age restriction on the right of the child to express his or her views and that it does not encourage States parties to introduce age restrictions in law or in practice that would infringe on the right of the child to be heard on all matters affecting him or her. Determining the best interests of children requires that their situation be assessed separately, whatever the reasons that led their parents to apply for asylum (paragraph 10.11 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author's allegations that the State party did not take into account the best interests of the child when considering an asylum application, in violation of article 3 of the Convention on the Rights of the Child, were taken into account. The Committee drew attention to the author's allegations that their expulsion to Bulgaria would violate the rights of her son (M.K.A.H.) under articles 3 (paragraph 1), 6 (paragraph 2), 22, 27, 28, 37 and 39 of the Convention, since being a child traumatized by the armed conflict in the Syrian Arab Republic and due to his refugee status, he will not be able to receive in Bulgaria the support necessary for a decent life, with access to education, housing, medical care and social support necessary for his social reintegration and rehabilitation. The Committee also took into account the author's claims that the state of her own mental health, including severe mental disorders, cannot be considered separately from the state of health of her child, since she is the only person who could provide him with the necessary care in Bulgaria (paragraph 10.2 of the Views).
In this regard, the Committee drew attention to reports provided by the author and third parties that Bulgaria does not have an integration program for beneficiaries of international protection who face serious difficulties in accessing housing, employment, social benefits and medical care. He took note, in particular, of a report issued in October 2019 by the Office of the United Nations High Commissioner for Refugees, which states that the lack of adequate reception conditions and integration prospects forces many asylum seekers to leave the country before their application is considered or shortly after granting asylum, that there are no targeted assistance measures in Bulgaria integration and support of people with special needs, and that the threat of being homeless is real. The Committee also took into account the Views of the UN Human Rights Committee in the R.A.A. case. and Z.M. v. Denmark", in which the Committee considered that the return of the couple and their child to Bulgaria would violate their rights under article 7 of the International Covenant on Civil and Political Rights, since they risked deprivation and need, and the father would not have access to the medical care he needed (paragraph 10.6 of the Views).
The Committee pointed out the following - in analyzing the asylum application, the State party took into account the fact that Bulgaria is a party to treaties relating to human rights and the protection of persons enjoying additional protection, including Directive 2011/95/EU, but did not properly take into account numerous reports indicating that the risk of inhuman or degrading treatment The treatment of children in situations similar to that of M.K.A.H. is real. The Committee also noted that the State party had not taken due account of the situation of M.K.A.H. as a victim of the armed conflict and an asylum seeker who was allegedly subjected to ill-treatment during his stay in Bulgaria; the State did not attempt to take the necessary steps to carry out a personalized risk assessment to which M.K.A.H. would be exposed in Bulgaria, checking what the conditions of admission for him and the author would actually be, including with in terms of access to education, employment, housing, medical care and other services necessary for the child's physical and psychological readaptation and reintegration into society. The Committee took note of the State party's argument that third-country nationals could seek the assistance of charitable organizations in Bulgaria. At the same time, he pointed out that the support of charitable organizations is not the fulfillment by the state of its obligations, but a palliative (paragraph 10.7 of the Considerations).
The Committee stressed that when the author and M.K.A.H. applied for asylum, they explicitly stated that M.K.A.H. was a stateless person. He noted that the State party had not attempted to take the necessary steps to verify whether the child could obtain citizenship in Bulgaria. The Committee considered that compliance with article 7 of the Convention on the Rights of the Child requires States to take positive measures to realize the right to acquire citizenship. The State party, aware of M.K.A.H.'s lack of citizenship, should have taken all necessary measures to ensure that he would be able to obtain citizenship if he returned to Bulgaria. Consequently, taking into account the circumstances of the present case, the Committee concluded that in the event of return to Bulgaria, the rights of M.K.A.H. under article 7 of the Convention would be violated (paragraph 10.10 of the Views).
The Committee took note of the author's claim that the State party violated article 12 of the Convention because the national authorities did not hear M.K.A.H., who was 11 years old at the time, during the examination of the asylum application. The Committee also took into account the arguments of the State party, which argued that the child had not been heard because of his young age and that he had exercised his right to be heard through his mother. In the circumstances of the case, the Committee considered that the absence of a direct interview with the child constituted a violation of article 12 of the Convention (paragraph 10.11 of the Views).
With regard to article 16 of the Convention, the Committee took note of the author's allegations: the decision to expel M.K.A.H. would also violate his rights, since he would be separated from his uncle and cousins, members of his family living in Europe, and that relations with them were fundamental to his well-being and social reintegration. Taking into account the specific circumstances of the case, the Committee considered that any separation of M.K.A.H. from his cousins and uncle could well create additional difficulties for the child's development and social reintegration. Thus, the Committee concluded that the return of M.K.A.H. to Bulgaria would constitute arbitrary interference with his personal life in violation of his rights under article 16 of the Convention (paragraph 10.12 of the Views).
The Committee's conclusions: the facts presented indicated a violation of articles 3 and 12 of the Convention and that the return of M.K.A.H. and his mother to Bulgaria would also violate articles 1, 6, 16, 22, 27, 28, 37 and 39 of the Convention on the Rights of the Child.