Views of the Committee on the Rights of the Child dated February 1, 2019 in the case of D.D. v. Spain (communication No. 4/2016).
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
Subject matter: Expulsion of an unaccompanied child from Spain to Morocco without due process.
The Committee's legal position: The Committee considers that the State's obligations to provide special protection and assistance to unaccompanied children in accordance with 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". Similarly, 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).
The Committee... Considers that, 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 he may irreparable harm may be caused." 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 the consequences of 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 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: The Committee notes that on 2 December 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 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 fence 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).
The Committee... Takes note 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 reaffirms 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... Notes that prior to the complainant's return to Morocco, the State party did not identify him, did not ask about his personal circumstances, and did not make a preliminary assessment of the risk of persecution and/or irreparable harm to him in the country to which he was to be returned. The Committee considers that, in the light 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 author before deportation and the failure to respect the principle of ensuring his best interests constitute a violation of articles 3 and 37 of the Convention [on the Rights of the Child] (paragraph 14.6 of the Views).
The Committee considers that, in the circumstances of the present case, 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 violates his rights under articles 3 and 20 of the Convention (paragraph 14.7 of the Views).
The Committee considers 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 - constitutes treatment prohibited under article 37 of the Convention [on rights of the child] (paragraph 14.8 of the Views).
The Committee's conclusion: the facts presented indicate a violation of articles 3, 20 and 37 of the Convention [on the Rights of the Child] (paragraph 14.9 of the Views).