According the CRC,
D.D., is a Malian citizen born on 10 March 1999. He claims to be a victim of violations of articles 3, 20 and 37 of the Convention.The issue before the Committee is whether, in the circumstances of this case, the author’s return to Morocco by the Spanish Civil Guard on 2 December 2014 violated his rights under the Convention. In particular, the author claimed that, by summarily deporting him to Morocco on 2 December 2014, without performing any form of identity check or assessment of his situation, the State party: (a) failed to provide the author with the special protection and assistance to which he was entitled as an unaccompanied minor (art. 20); (b) failed to respect the principle of non-refoulement and exposed the author to the risk of violence and cruel, inhuman and degrading treatment in Morocco (art. 37); and (c) failed to consider the best interests of the child (art. 3).
Third-party intervention:On 31 May 2018, the International Commission of Jurists, the European Council on Refugees and Exiles, the AIRE Centre and the Dutch Council for Refugees submitted a third-party intervention.
CRC notes that it is imperative and necessary that, in order to comply with its obligations under article 20 of the Convention and to respect the best interests of the child, the State conducts an initial assessment, prior to any removal or return, that includes the following stages: (a) assessment, as a matter of priority, of whether the person concerned is an unaccompanied minor, with, in the event of uncertainty, the individual being accorded the benefit of the doubt such that, if there is a possibility that the individual is a child, he or she is treated as such; (b) verification of the child’s identity by means of an initial interview; and (c) assessment of the child’s specific situation and particular vulnerabilities, if any.
The Committee reiterates that the State party has an obligation not to return a child “to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child”. The Committee also notes that, before returning the author to Morocco, the State party did not ascertain his identity, did not ask about his personal circumstances and did not conduct a prior assessment of the risk, if any, of persecution and/or irreparable harm in the country to which he was to be returned. The Committee considers that, given the violence faced by migrants in the Moroccan border area and the ill-treatment to which the author was subjected, the failure to assess the risk of irreparable harm to the author prior to his deportation or to take into account his best interests constitutes a violation of articles 3 and 37 of the Convention.
(14.7)The Committee considers that, in the light of the circumstances of the case, the fact that the author, as an unaccompanied child, did not undergo an identity check and assessment of his situation prior to his deportation and was not given an opportunity to challenge his potential deportation violates his rights under articles 3 and 20 of the Convention.
(14.8) the Committee considers that the manner in which the author was deported, as an unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs, constitutes treatment prohibited under article 37 of the Convention.
(14.9)The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it amount to a violation of articles 3, 20 and 37 of the Convention.
(15.) The State party should provide the author with adequate reparation, including financial compensation and rehabilitation for the harm suffered. The State party is also under an obligation to prevent similar violations from occurring in the future, in particular by revising Organic Act No. 4/2015 on safeguarding the security of citizens, which was adopted on 1 April 2015. The State party should moreover revise the tenth additional provision of that law, on the special regime applicable in Ceuta and Melilla, which would authorize its practice of indiscriminate automatic deportations at the border.
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