Supreme Court, Civil Chamber Procedure no. 2629/2019 Decision no. 307/2020 - Spain
Summary
Background
The plaintiff was born in Mali and immigrated alone to Spain. Upon entering Spanish territory, he declared that he was of legal age in order to reach Madrid more easily and avoid being interned in Melilla or deported. Yet, when applying for legal guardianship, he provided official documentation stating that he was a minor. The Prosecutor’s Office for Minors (“POM”) refused to: (i) declare him a minor because of the alleged inconsistency as to his real age, because some of his official documents were issued after his arrival in Spain, and because of his refusal to submit to medical examinations to determine his age; and (ii) subsequently denied him child protection services and the right to a legal guardianship. The administrative decisions were upheld by the courts in first instance and on appeal, and later reversed by the Supreme Court.
Reasoning
Concerning the standing, the Supreme Court confirmed that, even though the plaintiff had unarguably reached legal age during the proceedings, he still had a “legitimate interest” in pursuing a declaration that the administrative resolutions were illegal because at the time he made the request for protection he was still a minor.
On the merits, the Court restated the importance of protecting unaccompanied minors and held that domestic provisions must be construed in accordance with the best interests of the child (Article 3.1. UNCRC- See p. 12, the Supreme Court cites article 3.2 but clearly refers to article 3.1) and that foreigners whose age cannot be determined with certainty must be treated as minors until their age is established (article 12.4 LOPJM). It added that the child’s best interests require judges to proceed on a case-by-case basis and to attempt to balance two goals: the danger of sending non-minors to minor centres and the risk of leaving actual minors without protection.
Role of children
The child was the plaintiff at all stages of the judicial proceedings. He was accompanied and probably represented by Fundación Raíces’ attorneys. Fundación Raíces has a Practical Handbook for lawyers in its webpage that highlights the importance of the active participation of children during the judicial process, in keeping with the UNCRC.
Enforcement and other outcomes
From a strategic point of view, this decision set a powerful precedent for Spanish Courts and administrative organs, since it bars them from ignoring official documents presented by minors and restrains the arbitrary application of the exceptions set forth in law. 6 By doing so, the Spanish Supreme Court ensures that minors in the same circumstances as the plaintiff effectively enjoy the legal and conventional protection to which they are entitled.
Significance of the case from a CRSL perspective
This decision from the Supreme Court positively impacts the situation of unaccompanied minors who immigrate to Spain as it curtails Spanish authorities’ ability to contest official identification documents without reasonable doubt, supported by substantiated evidence. This precedent also prevents Spanish authorities from requiring medical examinations on minors when there is no reasonable ground to doubt the reliability of their identification documentation.
The case at hand is part of a strategy devised in part by Fundación Raíces to aid immigrant minors in similar situations (FAIR project).
Fundación Raíces is now advocating for the Spanish Government to amend the Law to reflect the Supreme Court’s ruling. It is also pushing for a reform of the system so that requests for legal guardianship be directed to judicial organs, instead of the POM, in order to ensure that all necessary procedural guarantees are respected and to close the interpretation gap that still allows authorities to deny protection to immigrant children.
Importantly, the Spanish Supreme Court effectively incorporated the UN Committee on the Rights of the Child’s case law, perhaps paving the way for future changes to other aspects of its legal system (e.g. in regard to the medical examination of minors in general), in keeping with the Committee’s Observations.
Country
Spain
Forum and date of decision
Supreme Court, 16 June 2020.
CRC provisions and other international law provisions
UNCRC, Article 3.1. (The Court mentions Article 3.2 when in substance it clearly refers to Article 3.1. ( See p. 12)
UNCRC, Articles 12.1 and 16 relied upon by the plaintiff in earlier proceedings
Case law relied on by the Prosecution, but not mentioned by the Court in the operative part of its decision:
Committee on the Rights of the Child’s resolutions and Final Observations challenging Spain’s legal system in regard to the determination and age and its use of intrusive to determine age when official documentation appears to be authentic.
European Court of Human Rights’ case law which acknowledges that EU Member States have some discretion in terms of assessing evidence.
International Commission on Civil Status, Recommendation no. 9 of 17 March 2005, which provides that States have ample discretion when conducting investigations.
Domestic law provisions
Civil Procedure Law, Article 22 which requires that the plaintiff hold a legitimate interest to support its claim.
Article 24 of the Spanish Constitution, which safeguards procedural rights, including in relation to the assessment of evidence.
Organic Law 4/2000 on the Rights and Freedoms of Foreigners in Spain and their Social Integration, Article 35.3 which provides for the rights and protection of undocumented foreigners whose minority of age cannot be determined with certainty.
Royal Decree 557/2011, Article 190 which provides for the rights and protection of undocumented foreigners whose minority of age cannot be determined with certainty.
Organic Law for the Legal Protection of Minors (LOPJM) of 2015, Article 12.4 which provides that persons whose age cannot be determined shall be considered as minors, until their age can be proven based on official documentation and/or medical examination.
Related information
Information on groups and individuals involved on the case
For the applicants:
For respondents:
Ministerio Fiscal de España, https://www.fiscal.es/
Comisión de Tutela del Menor de la Comunidad de Madrid, https://www.comunidad.madrid/transparencia/unidad-organizativa-responsable/comision-tutela-del-menor
Case documents
Supreme Court, Civil Chamber Procedure no. 2629/2019 Decision no. 307/2020
Secondary documents:
http://www.fundacionraices.org/wp-content/uploads/2016/03/SOLO-POR-ESTAR-SOLO.pdf
http://www.fundacionraices.org/?page_id=2578
http://www.fundacionraices.org/wp-content/uploads/2016/03/Propuesta-conjunta-reforma-RD-RLOEX.pdf
