Judgment Nº CRC/C/86/D/63/2018 from United Nations of Human Rights, Office of the High Commissioner, 29-01-2021

• Judgment Date: 29 January 2021
• Case Outcome: Adoption of views
• Submitted Date: 28 November 2018
• Subject Matter: admissibility - exhaustion of domestic remedies,admissibility - manifestly ill-founded,admissibility - ratione personae,best interests of the child,children rights,interim measures,right to identity
• Court: Office of the United Nations High Commissioner for Human Rights

	United Nations	CRC/C/86/D/63/2018
	Convention on the Rights of the Child	Distr.: General 24 February 2021 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 on a communications procedure, concerning communication No. 63/2018 * , **

Communication submitted by:C.O.C. (represented by counsel, Vanessa Hernández Delgado)

Alleged victim:The author

State party:Spain

Date of communication:28 November 2018

Date of adoption of Views:29 January 2021

Subject matter:Determination of the age of an unaccompanied minor

Procedural issues:Failure to exhaust domestic remedies, incompatibility ratione personae, failure to substantiate the complaint

Articles of the Convention:3, 8, 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 C.O.C., a national of the Gambia born on 2 February 2001. He claims to be the victim of violations of articles 3, 8, 18 (2), 20, 27 and 29 of the Convention. The Optional Protocol entered into force for the State party on 14 April 2014. The Committee also notes that although the author does not explicitly invoke it, he suggests that he is a victim of a violation of article 12 of the Convention.

1.2Pursuant to article 6 of the Optional Protocol, on 3 December 2018, the working group on communications, acting on behalf of the Committee, requested the State party to adopt an interim measure – namely, to stay the execution of the order for the author’s deportation pending the consideration of his case by the Committee – and to transfer him to a child protection centre.

The facts as submitted by the author

2.1On 28 October 2018, the Maritime Safety and Rescue Agency, in cooperation with the National Police, detained the author as he attempted to enter the State party on board a small boat. Although he was not carrying any documentation, he claimed to be a minor. On the same day, the author was taken to an annex of the National Police station at Playa de las Américas in the south of the island of Tenerife.

2.2On 31 October 2018, the author was notified of a decree of the Santa Cruz de Tenerife Provincial Prosecutor’s Office declaring him to be an adult on the basis of medical tests, no evidence of which was recorded in his case file. The author claims not to have been notified of the results of these medical tests. On 2 November 2018, the author was notified of an order for his removal issued by the Immigration Office of the Government Sub-Delegation of Santa Cruz de Tenerife. On 3 November 2018, Court of Investigation No. 4 of Arona ordered that the author be placed in the Hoya Fría migrant holding centre. However, the author continued to be held in the annex of the National Police station in Playa de las Américas until 16 November, when he was transferred to the holding centre.

2.3On 8 November 2018, the author appealed against the removal order. He contended that there was no basis for the decree of the Prosecutor’s Office declaring him to be an adult, since it cited tests of which there was no record in the case file and failed to mention the date on which they had been carried out. As of the date of submission of the communication, the author had received no response to this appeal.

2.4Also on 8 November, the author’s lawyer went to the Santa Cruz de Tenerife Provincial Prosecutor’s Office to collect the results of the medical tests allegedly carried out on the author and seven other minors, as those results were not included in the respective case files. The prosecutor for minors refused to hand over this evidence in all but one of the eight cases. According to the report to which the lawyer had access, the only tests that had been performed on the minors were a wrist X-ray taken for a bone age assessment using the Greulich and Pyle atlas and a medical examination. The author claims that these tests were done without his consent or an interpreter, that he was not attended by a professional specializing in the age determination process and that he was not assisted by a lawyer during the procedure. Moreover, the Prosecutor’s Office decree declaring him to be an adult stated that, in keeping with the Mincer method, a dental panoramic radiograph was taken with his informed consent, but the author claims that this radiograph was not taken because the necessary equipment was out of service.

The complaint

3.1The author maintains that the State party failed to respect his right to be presumed 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 made all the more flagrant by the 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 the concluding observations adopted in respect of the State party in which the Committee expresses concern about the lack of a uniform process in its territory to determine what it means to act in the child’s best interests when assessing the age of unaccompanied children.The author points out that in these concluding observations, the Committee expressed concern about substandard accommodation conditions and neglect in emergency centres in the Canary Islands, the centre in La Esperanza on Tenerife in particular.In addition, the author refers to various studies to support his claim that the age estimation methods used in the State party, particularly those used in his case, have a wide margin of error, as the studies underpinning them were based on other populations with very different racial and socioeconomic characteristics.

3.2The author also claims that he is a 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, a step that is a key procedural safeguard.In addition, he maintains that his rights under article 3 (2), read in conjunction with article 20 (1), have been violated as a result of the State party’s failure to provide him with protection, even though he was defenceless and highly vulnerable. The author submits that the best interests of the child should prevail over public order concerns regarding foreign nationals and that the State party has an obligation to take appropriate legislative and administrative measures for the proper protection of children, so that they are not left in a situation of distress as a result of the failure to appoint a guardian.

3.3In addition, the author submits that the State party has violated his right to an identity, a right enshrined in article 8 of the Convention, since age is a fundamental aspect of a person’s identity and the State party has a duty not to interfere in this regard. Moreover, the State party’s obligation includes the duty to preserve and retrieve any available information on the author’s identity.

3.4The author likewise 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.

3.5The author also alleges a violation of his rights under article 20 of the Convention, since he has not received protection from the State party. He cites general comment No. 6 (2005), according to which this right must be interpreted in the light of the child’s circumstances, age and ethnic, cultural and linguistic background.

3.6The author proposes the following potential solutions:

(a)That the State party acknowledge that it is impossible to establish his age on the basis of the medical tests that were carried out;

(b)That he be notified of any decision affecting him;

(c)That the possibility of lodging an appeal with the judicial authorities against age determination decrees issued by the Public Prosecution Service be recognized;

(d)That he be assigned a representative immediately;

(e)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.

State party’s observations on admissibility and the merits Account of the facts

4.1In its observations of 1 March 2019 on the admissibility and merits of the communication, the State party made its own presentation of the relevant facts. According to the State party, on 28 October 2018, the author arrived in a small boat, with 72 other people of sub-Saharan origin, off the coast of Santa Cruz de Tenerife. On the same day, the local immigration and borders brigade of the National Police activated the protocol on unaccompanied minors. On 29 October 2018, the Office of the Prosecutor for Minors of the Santa Cruz de Tenerife Provincial High Court authorized tests to determine the author’s age.

4.2On 31 October 2018, the Office of the Prosecutor for Minors issued decree No. 24/2018, in which it stated that the author had reached the age of majority. On the same day, at the Tenerife Sur police station and pursuant to a decision of the Government Sub-Delegation of Santa Cruz de Tenerife, deportation proceedings were initiated, on the basis of article 53 (8) (b) of Act No. 4/2000, for illegal entry into Spanish territory. The author was notified of the proceedings on 2 November 2018.

4.3On 3 November 2018, Court of Investigation No. 4 of Arona authorized the...