Judgment Nº CRC/C/85/D/28/2017 from United Nations of Human Rights, Office of the High Commissioner, 28-09-2020

• Judgment Date: 28 September 2020
• Case Outcome: Adoption of views
• Submitted Date: 20 July 2017
• Subject Matter: best interests of the child,education,freedom of opinion and expression,right to identity
• Court: Office of the United Nations High Commissioner for Human Rights

	United Nations	CRC/C/85/D/28/2017
	Convention on the Rights of the Child	Distr.: General 27 October 2020 English Original: Spanish

Committee on the Rights of the Child

Views adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child ona communications procedure, concerning communicationNo. 28/2017 * , **

Communication submitted by :M.B. (represented by Fundación Raíces)

Alleged victim :The author

State party :Spain

Date of communication :20 July 2017

Date of adoption of Views :28 September 2020

Subject matter:Age assessment procedure in respect of an unaccompanied minor

Procedural issues :Non-exhaustion of domestic remedies; abuse of the right of submission; incompatibility ratione personae; non-substantiation of claims

Articles of the Co nvention :3, 8, 12, 18 (2), 20 (1), 27 and 29

Articles of the Optional Protocol:6 and 7 (c), (e) and (f)

1.1The author of the communication is M.B., a Guinean national born on 1 January 2000. He claims to be the victim of a violation of articles 3, 8, 12, 18 (2), 20, 27 and 29 of the Convention. The Optional Protocol entered into force for the State party on 14 April 2014.

1.2Pursuant to article 6 of the Optional Protocol, on 25 July 2017, the Working Group on Communications, acting on behalf of the Committee, requested the State party to adopt interim measures consisting of a stay in the execution of the expulsion order against the author pending the consideration of his case by the Committee, and his transfer to a child protection centre.

1.3On 1 March 2018, the Working Group on Communications, acting on behalf of the Committee and in accordance with rule 18 (5) of its rules of procedure under the Optional Protocol, rejected the State party’s request for the admissibility of the communication to be considered separately from the merits.

The facts as submitted by the author

2.1The author arrived in Almería on 3 June 2017 after the small boat in which he was travelling was picked up by the Red Cross. The author told Red Cross staff that he was a minor. He again stated that he was a minor upon coming into contact with the police. However, the police registered him as an adult and recorded his date of birth as 1 January 1996. On 5 June 2017, Almería Court of Investigation No. 1 notified the author of a decision to return him to his country of origin, which was subsequently appealed by his court-appointed lawyer. The following day, the same court ordered the minor’s detention in the holding centre for foreign nationals in Madrid, to which he was transferred.

2.2On 17 July 2017, the author applied for asylum and was interviewed the next day, accompanied by his lawyer and an interpreter. During the interview, the author did not say that he was a minor because he was not asked and because he thought that, as a minor, he could not apply for asylum. His asylum application was rejected four days later. Also on 17 July, the organization SOS Racismo, which assists persons detained in the holding centre for foreign nationals, wrote to inform the Ombudsman and Court of Investigation No. 19 (the supervision court responsible for the holding centre) that five minors were being held there, including the author, and that they were at imminent risk of deportation. On 19 July, the Court ordered that the director of the holding centre for foreign nationals and the prosecutor responsible for foreign nationals be informed of the situation.

2.3On 20 July 2017, Fundación Raíces submitted a request to eight different authorities on the author’s behalf, asking that he be released from the holding centre for foreign nationals and placed in the care of the Madrid child protection services. In doing so, Fundación Raíces explained that steps were being taken to obtain documents that would prove that the author was a minor. Copies of the author’s birth certificate and of the legal certificate accompanying it were sent to the relevant courts and prosecutors’ offices on 21 July. On 28 July, the author submitted the original documents, having received them by post. The same day, after having spent 52 days in the holding centre for foreign nationals, the author was released and subsequently found accommodation in a shelter for adults, without having been assigned a guardian and without receiving the treatment to which minors are entitled under both national and international law.

The complaint

3.1The author maintains that the State party failed to respect his right to be presumed to be a minor in the event of doubt or uncertainty and thus acted against his best interests and in violation of article 3 of the Convention. This violation is all the more flagrant, as there was a real risk of the author’s suffering irreparable harm as a consequence of his having been placed in a detention centre for adults and ordered to return to his country of origin. The author cites concluding observations issued in respect of the State party in which the Committee expresses concern at the lack of a uniform protocol in its territory for taking proper account of the principle of the best interests of the child when assessing the age of unaccompanied children.

3.2The author also claims to be the victim of a violation of his rights under article 3 of the Convention, read in conjunction with article 18 (2), owing to the failure to appoint a guardian to protect his interests as an unaccompanied minor, which serves as a key procedural safeguard to ensure respect for his best interests. He also alleges a violation of article 3 (2), read in conjunction with article 20 (1), on the ground that the State party failed to provide him with protection, even though he was a defenceless and extremely vulnerable unaccompanied child migrant. The author maintains that the best interests of the child should prevail over public order concerns regarding foreign nationals and that, when dealing with persons who claim to be minors, especially when they are in possession of documents that prove their age, the State party should set in motion its administrative apparatus and appoint a guardian as a matter of course.

3.3In addition, the author submits that the State party has violated his right to preserve his identity, which is enshrined in article 8 of the Convention. He points out that age is a fundamental aspect of identity and that the State party has an obligation not to interfere in this regard. Moreover, the State party’s obligation includes the duty to preserve and recover any data on the identity of the author that still exist or that may exist.

3.4The author further alleges a violation of his right to be heard enshrined in article 12 of the Convention.

3.5The author also claims to be the victim of a violation of his rights under articles 27 and 29 of the Convention, as his proper all-round development has been impeded. The author believes that his not having a guardian to guide him has prevented him from developing in a manner consistent with his age.

3.6The author also alleges a violation of his rights under article 20 of the Convention, since he has not received protection from the State party. The author cites general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, according to which this right must be interpreted in the light of the child’s circumstances, age, and ethnic, cultural and linguistic background.

3.7The author proposes the following potential solutions:

(a)That the State party recognize him as a minor, stay his removal to his country of origin and place him in the care of the child protection services;

(b)That the documents issued by Guinea be recognized as valid;

(c)That all his rights as a minor be recognized, including the rights to receive State protection, to have a legal representative, to receive an education and to be granted a residence and work permit to allow him to fully develop as a person and to be integrated into society;

(d)That the minor’s right to be assisted by a lawyer or representative of his own choosing be recognized before his case is considered by the Spanish authorities; and

(e)That he and his lawyer be notified of any decision affecting him.

State party’s observations on admissibility Account of the facts

4.1In its observations of 13 November 2018 on the admissibility of the communication, the State party points out that the author’s account of the facts is biased and inaccurate. It claims that the police report of 5 June 2017 on the interception of the small boat states that there were 36 individuals aboard, all of whom “appeared to be adults”. On the same day, expulsion proceedings were instituted against the author and he was notified of removal decision No. 1480/2017. The following day, 6 June, the author was detained in the holding centre for foreign nationals in Madrid.

4.2On 17 July, he applied for international protection with a statement signed by him, an interpreter and his lawyer. In his statement, the author: (a) never claimed to be a minor; (b) stated his date of birth to be 1 January 1996 – that is, that he was 21 years of age when he entered Spain; and (c) when asked why he was applying for asylum, he replied that “my life is in danger because my father’s second wife tried to poison me”.

4.3On 21 July, his asylum application was rejected; this decision was appealed on 21 July only to be rejected again on 26 July. At the appeal stage, the author still did not claim to be a minor. On 21 July, the author also submitted, through lawyers of his own choosing, a photocopy of what he claimed to be a copy of his birth certificate, requesting that it be made available to the child protection authorities. The State party argues that there is no document proving that this certificate belongs to the author, as he did not have it with him at the time of his arrest and it does not contain any...