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Spain: Update: Order on the treatment of migrant minors as adults repealed
01 February 2005
On 26 November 2004, the new Spanish Fiscal General del Estado (general state prosecutor, equivalent to an attorney general) Cándido Conde-Pumpido issued order 6/2004, instructing fiscales (prosecutors) "on the legal treatment of unaccompanied migrant minors", which leaves a previous order (3/2003) issued by his predecessor, Jesús Cardenal, without effect. The order issued by Cardenal on 23 October 2003 instructed fiscales to consider migrant minors who are over 16 as adults (according to Spanish law, adulthood is reached at 18); not to grant them the status as "defenceless" (desamparo in Spanish, a legal status involving such factors as the absence of parents, or means of subsistence) unless exceptional circumstances apply; to decree their detention within 24 hours of their being identified unless exceptional circumstances apply, and to apply for them to be returned to their "places of origin within the shortest possible delay"; if the return could not be carried out within the first 48 hours, to have them detained in centres for minors. Furthermore, the order stressed that any appeals against an "administrative decision" to repatriate a "non-defenceless" minor would be subject to a screening process, involving an authorisation by the Fiscal Jefe (chief prosecutor), who would submit a detailed report on the merits of the case to the Fiscal General del Estado.
While Conde-Pumpido acknowledges that the issue of the treatment of migrant minors is complex, he stresses that legal issues relating to immigration legislation must be subordinated to norms on the duty of care that the State has over minors who are in a situation of "defencelessness". To support his claim, Conde-Pumpido points to case-law and to national and international legal instruments, including article 3 of the UN Convention on the Rights of the Child, which states that:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
While admitting that it is important to try to return the minor to his/her own family or cultural nucleus, he notes that this process must follow a legally established procedure which seeks to promote the child's best interests, notably to try to find the people responsible for the child, and to hand the child over to them. The Fiscal General del Estado justifies his decision to leave order 3/2003 "without effect", on the grounds that it has given rise to "doubts" and to "interpretations that are not in accordance with the general principle of the superior interest of the child… causing dysfunctions and problems insofar as the definition of the legal treatment applicable to these minors is concerned".
The new guidelines for fiscales issued by Conde-Pumpido include the presumption that any migrant who is under 18 is a minor and that unless there is conclusive, documented evidence that a minor is independent, s/he is to be treated as a minor. Migrant minors identified by members of the national police or Guardia Civil (Spain's paramilitary police force), in cases where they have not committed a criminal offence, must not be sanctioned "for any of the reasons envisaged in the ley de extranjería (the Spanish immigration law)", particularly those which may lead to expulsion or internment, and once their under-age status has been ascertained, they must be provided with all the means for their protection and care that minors, regardless of their nationality, enjoy under Spanish law. Thus, Fiscales Jefes are to issue orders to ensure that services for the protection of minors take charge of minors, or people believed to be minors, within the shortest possible delay. The order by Conde-Pumpido states that authorities must attempt to carry out the repatriation of minors, aimed at returning them to their family, but this repatriation is not to be considere