VI. THE LACK OF EFFECTIVE MECHANISMS FOR ENSURING RIGHTS
In more than a dozen interviews with Spanish officials at every level of government, Human Rights Watch found an utter lack of effective monitoring and enforcement mechanisms or procedures to ensure that unaccompanied migrant children received the care and protection to which they are entitled in domestic and international law. Time and again officials charged with monitoring, coordinating, and providing care told us that some other body was responsible for investigating and enforcing children's rights to protection, or that they relied on their subordinates to inform them of any problems or abuses involving unaccompanied children, although in almost all cases the subordinates were responsible for the abuses. Without doubt, decentralization and lack of coordination among government agencies contribute to human rights violations against unaccompanied migrant children, but the core problem remains an unwillingness to acknowledge and enforce these children's rights. 237
Lack of Oversight and Clear Lines of Responsibility
Immediate oversight for the Departments of Social Welfare lies with the autonomous governments' Offices of the Presidency, but these agencies do not themselves monitor or investigate treatment of unaccompanied children. Asked how the presidency exercised its oversight, the chief of staff for the Ceuta presidency told us her office was dependent on reports from the Department of Social Welfare to know if there was a problem, and that it did not engage in what she termed "preventive" investigations. "There must be a problem first," she said. 240
Central government officials we interviewed deferred completely to the Departments of Social Welfare on issues relating to unaccompanied migrant children. The Ministry of Labor and Social Affairs' secretary general for social affairs told Human Rights Watch, "The autonomous governments have complete control on issues related to social integration. We cannot inspect centers. We do audits to ensure that they spend the money [we provide them] as they say they will, but we do not control their rules (normativas), as each autonomous government writes its own rules for these centers." 241 The central government's representative in Ceuta told Human Rights Watch that he was not responsible for ensuring unaccompanied children received care and only initiated expulsions at the request of the Department of Social Welfare.242 The department, in turn, denied asking for expulsions, and said it was the Delegate's decision.243
Only the Ministerio Fiscal, an office roughly equivalent to an attorney general or state prosecutor's office, and the Office of the Ombudsman conduct any monitoring of residential centers. Based in Madrid, the Ombudsman has a small office that accepts and investigates complaints but lacks enforcement powers.244
The Ministerio Fiscal has oversight over wards of the state, including oversight over all residential centers for children.245 This oversight is exercised through the fiscal for minors, a position that combines prosecutorial functions with investigative and protection powers. Melilla has two fiscals for minors, who also deal with adult cases; Ceuta has only one. "We don't have enough staff to do all the investigations for our own cases," said one fiscal for minors.246 Fiscals for minors said they monitor conditions in the residential centers, but only irregularly, and they do not monitor expulsions of unaccompanied children at all. "We just get notification of it," said fiscal for minors José María Montero.247 Montero told us in October 2001 that his last visit to a residential center "was in July, to Purísima." Ceuta fiscal for minors Juan Luís Puerta Martí told us "[t]here are no regular visits to the [San Antonio] center. I can't give you information on our last visit because you don't have a need to know." Later, Puerta Martí said that he visits the San Antonio Center "every six months or less." 248 The fiscals in both cities told us their role was to make limited investigations and reports, and only a court could take action to correct an abuse.249 "Until now there has not been recourse to the courts," said Melilla's fiscal for minors Miguel Angel Sánchez Lorenzo. "We give our reports to the office of the representative of the central government and the Department of Social Welfare and Health."250 The chief of staff for the Presidency of Ceuta said the last report on residential centers there was "a few years ago, maybe two years ago." 251
Human Rights Watch was refused access to residential centers in Ceuta and Melilla. All the government officials we interviewed told us that other agencies control access to the centers. In Ceuta, the central government representative told us the city controls access to residential centers, and "there would have to be an extreme case to justify a visit."252 The Department of Social Welfare's deputy director told us "The center doesn't let anyone in because the fiscal doesn't want anyone to go in....We don't control who goes in. The fiscal has that authority."253 In turn, fiscal Juan Luís Puerta Martí told us, "You would have to ask the city. We don't have any responsibility in deciding who enters."254
Lack of Mechanisms for Lodging and Investigating Complaints
Human Rights Watch asked government officials to describe specific mechanisms that would facilitate the lodging of complaints by unaccompanied migrant children, as required by Spanish law.255 None of the officials we interviewed could name any, although several officials insisted that some process must exist in the Department of Social Welfare. Other officials made general references to the fiscal or the police as having authority to investigate abuses. To the extent that these mechanisms exist at all, they are grossly inadequate to meet Spain's legal obligations.
The description of Melilla's Department of Social Welfare's "complaint process" by that office's director general was typical of accounts in both cities. "There are kids who come here to tell us a complaint," she said. "Then we go and investigate. That is the normal process, although it doesn't happen so often."0 Neither the centers nor the Social Welfare Departments provide children with information on how to lodge complaints, and to the extent that children know about the department they generally view it as a source of their problems. This is particularly true in Ceuta, where some children told Human Rights Watch that the Social Welfare Department director visits the San Antonio center on a regular basis and threatens children with expulsion. Even if children knew how to lodge complaints at the department, its offices in both cities are located far from the residential centers with the largest populations and worst conditions, and uniformed guards control entrance.
Lodging a complaint with the fiscal for minors is equally difficult. Fiscals in both cities told us that children could either make their complaints directly to the police or present themselves at the office of the fiscal and lodge a complaint there. Ceuta's fiscal for minors later modified this, saying "If a child has a complaint he would go to the [Civil] Guard, which would investigate and then the fiscal would either bring a complaint before the court or not. It depends on the type of the complaint. If a child was hit by an educator he would go to the fiscal."1
None of the children Human Rights Watch interviewed had ever gone to the office of the fiscal for minors by themselves, although a nongovernmental organization in Melilla had taken some children to lodge complaints in that office.2 The offices of fiscals for minors in both cities are located far from the largest residential centers, in government buildings protected by armed guards. When Human Rights Watch visited the office of the fiscal for minors in Ceuta in November 2001, the building was posted with signs stating "no admission without a D.N.I.," the national identity document (Documento Nacional de Identidad) issued only to Spanish citizens.3 Even if this provision were not enforced, an unaccompanied child wishing to make a complaint to the fiscal would still have to talk his or her way past the armed guard on duty, pass through a metal detector, walk up an unmarked stairwell, cross a floor to another stairwell, and then find a poorly marked office.
Right to be Heard
Asked how decisions to expel children are made, the central government's representative in Ceuta told us, "The law requires that the delegacion must hear the child, but this is not done because the children don't come to the hearings." 4
Fernando Tesón Martín, Ceuta's judge for minors and president of the court, told us that any unaccompanied minor has a right to a lawyer in court proceedings, and "the fiscal has to take charge of the child's case before the court in the case of a complaint (denuncia) if the fiscal believes that it is a legitimate case." Asked how a child would know to claim this right, the judge admitted, "If a child has a case as a complaint (denuncia) the fiscal should inform him of his right to a lawyer, but there is no system of informing children of this right." Questioned about his own role in the process, Judge Tesón Martín said that as judge for minors he had no authority over conditions in residential centers or abuses by adults against children. "I only have penal authority-when a child has committed a crime-but the situation of immigrant children is a protection issue." 5
Police Impunity and Judicial Inaction
According to the officers, the detention and expulsion of children was a "constant and daily" occurrence in 1998. They reported that these children were detained in a police van together with adults for periods ranging from four to six hours during the roundups that preceded each expulsion. The officers also complained that the police van used to transport the children did "not meet even the most minimal conditions of safety, hygiene, and habitability, as the vehicle mentioned (a Mitsubishi van) is used on a daily basis to remove seized motorcycles and mopeds . . . as well as confiscated vegetables and fish to be auctioned off; as a consequence, the extremely strong smell of gasoline, oil, and fish that the undocumented persons detained there, including the minors mentioned above, find themselves forced to inhale."7
The complaint was supported by photographs, copies of official documents, and statements from children who had been subjected to expulsion. One of the supporting documents, a declaration intended to be a denunciation of one of the officers who filed the complaint, forthrightly noted that children had been detained together with adults while transported to the border in preparation for their expulsion. It opens with the words, "For your due knowledge and appropriate use, I have the duty to notify you that at 1:00 this morning, the duty sergeant and the undersigned lieutenant proceeded to transfer twelve undocumented individuals to the border at Tarajal, six of whom were minors."8 Other documents listed the names and ages of "Moroccan minors" turned over to the border post at Tarajal for expulsion.9
The declaration continued, "[W]e observed a person who parked a motorcycle in the area surrounding the border, specifically with license plate number CE-9816-E, and he headed toward the place where we were, taking photos. The lieutenant of the Civil Guard called him to order, telling him to refrain from taking photos, asking me if I knew that person, and, if he was a journalist. Right away I told him that he should relax, as it was a colleague, specifically it turned out to be Police Officer Manuel Navia Fernández, dressed in plain clothes." The officer making the declaration concluded, "I think that behavior of this type should not be allowed, which in my judgment contributes to the clear debasing of the Corps of Local Police of which (I don't know about him) I am proud to represent."10
After he and two of his colleagues filed their complaint, Officer Navia was suspended without pay. Several weeks later, according to a declaration he filed with the fiscal, he received threatening telephone calls. In one, the caller told him, "Listen to me good, for your fucking stupidity you're going to lose a lot of money soon, if you don't want to lose something more, go to the court and take back you know what. Remember that you're going to be a father soon."11 The officers faced other reprisals, according to documents they filed with the court.
Despite the source of the complaint and the evidence that supported it, the case languished for over a year before it was administratively closed. It was reopened in 2000 after a new judge took over the docket; it remains pending as of this writing.
237 See Chapter II for a discussion of the structure of the Spanish government.
238 Human Rights Watch interview with Inmaculada Casaña Mari, October 25, 2001.
239 Human Rights Watch interview with Josefina Castillo, November 6, 2001.
240 Human Rights Watch interview with María Teresa Troya, November 9, 2001
241 Human Rights Watch interview with Concepción Dancausa Treviño, November 13, 2001.
242 Human Rights Watch interview with Luís Vicente Moro, November 7, 2001.
243 Human Rights Watch interview with Josefina Castillo, November 6, 2001
244 The ombudsman may refer complaints to the Ministerio Fiscal and may make reference to these complaints in his annual report to the Spanish Parliament. The ombudsman may also bring an action before the Constitutional Court to challenge the constitutionality of an official act. See Organic Law 3/1981, of April 6, on the Ombudsman, Boletín Oficial del Estado, no. 109, May 7, 1981 (Spain); Law 36/1985, of November 6, Regulating the Relationship Between the Institution of the Ombudsman and Similar Officials in the Various Autonomous Communities, Boletín Oficial del Estado, no. 271, November 12, 1985 (Spain); Regulation of the Organization and Function of the Ombudsman, Boletín Oficial del Estado, no. 92, April 18, 1983 (Spain).
245 See, for example, Organic Law 1/1996, articles 21 and 24.
246 Human Rights Watch interview with Miguel Angel Sánchez Lorenzo, October 26, 2001.
247 Human Rights Watch interview with Jose María Montero, October 26, 2001.
248 In fact, Puerta Martí refused to give us his name at the end of our interview, telling us that he did not have to give us that information; he identified himself only as "the fiscal." We established his identity because we were led to his desk when we asked for him by name, we observed him signing documents in the name "Juan Luís Puerta Martí" as he spoke with us, and we asked his coworkers what his name was. Human Rights Watch interview with Juan Luis Puerta Marti, November 6, 2001.
249 Human Rights Watch interviews, Melilla, Spain, October 26, 2001 and Ceuta, Spain, November 6, 2001.
250 Human Rights Watch interview, Melilla, Spain, October 26, 2001.
251 Human Rights Watch interview with María Teresa Troya, November 9, 2001.
252 Human Rights Watch interview with Luís Vicente Moro, November 7, 2001.
253 Human Rights Watch interview wth Josefina Castillo, November 6, 2001.
254 Human Rights Watch interview with Juan Luis Puerta Martí, November 6, 2001.
255 Articles 9 and 10 of Organic Law 1/1996 guarantee children the right to governmental assistance for the effective exercise of their rights, as well as the right to be heard in all administrative and judicial proceedings affecting them.
0 Human Rights Watch interview with Inmaculada Casaña Mari, October 25, 2001.
1 Human Rights Watch interview with Juan Luis Puerta Martí, November 6, 2001.
2 Researchers from Human Rights Watch observed volunteers from the nongovernmental organization Prodein on October 24, 2001, as they attempted to lodge a complaint on behalf of two unaccompanied migrant children facing expulsion. Other complaints brought by Prodein on behalf of unaccompanied migrant children are on file with Human Rights Watch.
3 We were allowed to enter after agreeing to leave a passport with the guard on duty. While some unaccompanied migrant children have other forms of identification, such as temporary residence or health cards, many of the children we spoke with had no identification.
4 Human Rights Watch interview with Luís Vicente Moro, Ceuta, Spain, November 7, 2001.
5 Human Rights Watch interview with Fernando Tesón Martín, judge for minors, Ceuta, Spain, November 7, 2001.
6 Complaint to the Fiscal, Ceuta, Spain, October 5, 1998.
8 Declaration of Lt. Jesús Ortíz Fernández to the Chief of the Corps of Local Police, Ceuta, Spain, October 3, 1998 (emphasis added).
9 City Council of Ceuta, Local Police, "Presentation of Moroccan Minors," Ref. 509/98, October 14, 1998; City Council of Ceuta, Local Police, "Presentation of Moroccan Minors," Ref. 510/98, October 15, 1998.
10 Declaration of Lt. Jesús Ortíz Fernández to the Chief of the Corps of Local Police, Ceuta, Spain, October 3, 1998
11 Declaration of Manuel Navia Fernández, Ceuta, Spain, October 22, 1998.