By Rebeca Huete Salazar
On the 3rd of October 2017, the European Court of Human Rights ruled that Spain’s summary return practices in its districts in Morocco were in breach of the prohibition of collective expulsions (Article 4 Protocol 4 of the European Convention of Human Rights, ECHR) and the right to an effective remedy (Article 13). The case concerned two asylum seekers who – together with a group of approximately 75 sub-Saharan migrants – were immediately arrested by the Spanish Guardia Civil and expelled to Moroccan territory, without any identification or access to any individual reviews.
Unfortunately, this is not an isolated incident. The Spanish Commission for Refugees (CEAR) has repeatedly denounced Spain to have systemically expelled migrants and asylum seekers at its southern borders, very often by disproportionately using force. Just recently, the Audiencia Provincial de Cádiz appears to have closed the Tarajal case, which concerned the drowning of fourteen migrants in 2014 who were swimming towards Ceuta, after the Civil Guard fired rubber bullets and tear gas at them. Several NGOs have characterised the lack of an effective investigation in the Tarajal case as a “step back to impunity” in the fight for the protection of migrant’s rights.
These situations are likely to reoccur due to the Government’s approval in 2015 of the Public Security Act. This Act amends the Aliens Act by introducing a “special regime” for Ceuta and Melilla, which intends to provide a legal framework for the practice known as devoluciones en caliente (“hot expulsions”) i.e. the rejection of anyone caught climbing the fence structure bordering Morocco. Several organisations, including the United Nations and the Council of Europe, have denounced the new law, as it would not provide individuals with access to legal guarantees under international law such as individual assessment procedures, protection against the prohibition of non-refoulement without discrimination and the existence of an independent review mechanism.
This becomes even more alarming considering that since 2013 the number of asylum seekers and migrants using the Spanish-Moroccan border to reach Europe has been steadily increasing. According to the International Organisation for Migration (IOM), between January and November 2017, Spain has received 25,141 new migrants and asylum seekers. This represents a 111% increase in comparison with the 2016 figures (11, 910) in the same reporting period. Critically, as of May 2017, the official reception system, mostly composed by shelters run by NGOs, only had capacity for 5,125 persons.
Spain’s reception system for asylum-seekers and migrants is largely inadequate and under-funded. Furthermore, those who reach Spain’s mainland are placed at the disposal of either the National Police or the Civil Guards as detainees and are kept in preventive detention for 72 hours. In this time-frame, these individuals must be identified, provided with medical assistance and informed of their rights. However, according to CEAR, this information is provided in group sessions, and, in many cases, lawyers sign the “return agreement” without even visiting their clients. In 2017, migrants who were detained informed Human Rights Watch staff that they did not meet with a lawyer individually and were given “little or no information about applying for asylum”. In the event that a return order was issued, if not executed in the period of 72 hours, the person is placed in a Foreign National Detention Centre (Centro de Internamiento de Extranjeros, CIE), pending deportation.
This is problematic for various reasons. Under the Spanish legislation, the entry of migrants pending a deportation in the CIEs is conceived as a measure of last resort that should be implemented for the shortest period of time possible. Unfortunately, the automatic detention of these individuals in the CIEs appears to be the rule, even when the deportation rate per year is quite low (of the 7.597detainees at the CIEs in 2016, only 29% was finally deported that year). Furthermore, the Spanish Ombudsman, acting as the National Preventive Mechanism (NPM) of torture, has repeatedly denounced the lack of adequate conditions at the CIEs and condemned that there is still no effective separation between convicted inmates and those under arrest due to their lack of legal status in Spain. Moreover, in 2016, the Ombudsman received several complaints concerning allegations of torture and ill-treatment of detainees at the CIEs.
The consequences of the Court’s Judgement remains to be seen. For now, the human rights situation in the Mediterranean remains exceedingly fragile. The EU- Turkey deal, the Code of Conduct on Italian NGOs involved in conducting search-and-rescue (SAR) operations, and the rising involvement of Libya in managing the refugee crisis, will direct more migrants towards the Spanish route. Thus, if Spain doesn’t reconsider its current policy towards migrants and invest more resources towards its failing reception system, migrants will be put in an extremely vulnerable position.
Photo credit: Teresa Palomo, In memory of the fifteen persons who in 2014, in the pursuit of a better life, only found death.
 N.D. et N.T. v. Spain, App. No(s). 8675/15, 8697/15, ECHR, 03 October10 2017.
 Ley Orgánica 4/2015, de 30 de Marso, de Protección de la Seguridad Ciudadana [Public Security Act], Disposición final primera: Régimen especial de Ceuta y Melilla.
 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social [Aliens Act].
 United Nations Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Spain, 29 July 2015, CEDAW/C/ESP/CO/7-8, paras. 36-37; Human Rights Committee, Concluding Observations on the 6th Periodic Report of Spain, 14 August 2015, CCPR/C/ESP/CO/6, paras. 18-19; Committee Against Torture (CAT), Concluding Observations on the Sixth Periodic Report of Spain, 29 May 2015, CAT/C/ESP/CO/6, para. 13. To see the Reports, visit: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/ESIndex.aspx
 See Euronews, “Italy's code of conduct for NGOs involved in migrant rescue: text”, 03/08/2017, available at: http://www.euronews.com/2017/08/03/text-of-italys-code-of-conduct-for-ngos-involved-in-migrant-rescue; Refugees Deeply, “Expert Views: Should Rescue NGOs Sign Mediterranean Code of Conduct?”, 16 August 2017, available at: https://www.newsdeeply.com/refugees/community/2017/08/16/expert-views-should-rescue-ngos-sign-mediterranean-code-of-conduct.
 See, for instance, United Nations Support Mission in Libya, Office of the United Nations High Commissioner for Human Rights, “Detained and Dehumanised”, Report on Human Rights Abuses against Migrants in Libya, 13 December 2016, available at: http://www.ohchr.org/Documents/Countries/LY/DetainedAndDehumanised_en.pdf