PROCEDURAL ISSUES: ACCESS TO INFORMATION, COUNSEL, INTERPRETATION, INDIVIDUALIZED DETERMINATION, AND APPEAL

Human Rights Watch's investigation indicated that the problems identified above were dramatically compounded by procedural defects in the authorities' decision-making. Spanish law requires the provision of free legal, interpretation, and translation services for all migrants (with insufficient economic means) facing "administrative or legal procedures which might lead to refusal of entry, to repatriation or expulsion from Spanish territory, and in all procedures regarding asylum."⁵⁸ Migrants have the unequivocal right to an individualized judicial decision and judicial oversight in cases where they will be deprived of their liberty for more than seventy-two hours⁵⁹ and to appeal or challenge an order of expulsion, repatriation, or detention.⁶⁰ Spanish law also requires that migrants detained for violations of the foreigners' law have access to information about administrative and judicial decisions pertaining to them in a language they understand.⁶¹

International and regional law, like Spanish law, require that migrants subject to immigration detention be guaranteed basic procedural rights to ensure that no person is detained arbitrarily, including the rights to counsel and interpretation or translation services. The detention of persons without an effective and prompt opportunity to be heard by a judicial or other authority and an opportunity to challenge the lawfulness of detention, including access to the assistance of legal counsel, is prohibited. ⁶² International guidelines and domestic law on asylum procedures also require the provision of legal and interpretation and translation services necessary for applicants to submit a claim to the authorities,⁶³ as well as information on their rights in a language they understand.⁶⁴ European and international law also set forth that all migrants have the right to an individualized determination regarding their expulsion.⁶⁵

As detailed below, Human Rights Watch researchers found the Spanish system lacking in each of these categories, creating an environment conducive to the kinds of arbitrary and abusive decision-making described above.

Access to Information, Legal Assistance, and Translation and Interpretation Services

Migrants, particularly undocumented or "illegal" migrants, arriving in Spain suffer from a serious lack of information, legal assistance, and translation and interpretation services. These problems are most pronounced for migrants in detention and those facing repatriation by devolución or technical expulsion in Ceuta and in some cities along the Andalucian coast, but plague other parts of the system as well.

Of the dozens of migrants interviewed by Human Rights Watch, none had a clear understanding of the immigration system, their rights, or their legal status in Spain. Migrants along the Andalucian coast and in Ceuta, for example, thought expulsion orders were work permits; in the Canary Islands migrants signed their own deportation orders, thinking they were new identity documents giving them a right to remain in Spain.

Hamid R.,⁶⁶ a migrant in Ceuta with an expulsion order was typical of many of the migrants we interviewed. He said he felt very "happy" and "lucky" because he was "going to Algeciras [mainland Spain] tomorrow" where he would meet up with his friend and find a job.⁶⁷ Hamid R. told Human Rights Watch that the police had explained that he should find a job or leave Spain within fifteen days and that he could spend a couple of days in Algeciras after taking the ferry. The police gave no further information about his legal status in Spain, his right to appeal the expulsion order, information about seeking legal counsel, or the long-term effect of the expulsion order on his rights in Spain and other Schengen countries.⁶⁸

Human Rights Watch examined Hamid R.'s documents, which were only in Spanish-a language he could not read. The documents consisted of a copy of the expulsion order, which granted him a forty-eight-hour period to appeal and fifteen days to leave Spanish territory. When Human Rights Watch read the expulsion order to Hamid R. with the help of an interpreter, it became clear that he had had no idea that a lawyer was necessary or even an option, much less how to go about seeking legal services or locating the appropriate forms to appeal his expulsion order.⁶⁹

Representatives of the Spanish government have told Human Rights Watch that any defects in the information provided to migrants are remedied by their lawyers.⁷⁰ Unfortunately, Human Rights Watch's investigation suggests that even when access is provided or the migrants are advised of their opportunity to consult counsel, such confidence in the quality of migrants' legal representation is misplaced. Numerous interviews with migrants, representatives of migrants' aid organizations, lawyers, and officials indicated that lawyers are not always present at key moments in a migrant's case and that even when present they frequently play a perfunctory role, merely signing off on paperwork.

Lawyers' roles appear to be particularly limited in devolución cases. An activist in Tarifa explained that in such cases, "We are told by lawyers that they cannot help migrants in any way."⁷¹ In Melilla, it appears that lawyers from the local bar association,⁷² which is responsible for providing migrants with pro bono legal services, are not even called to the police station to assist in cases of devolución.⁷³ When Human Rights Watch asked an officer of the Civil Guard along the Andalucian coast about legal and translation services for devolución cases, he responded that "[i]t is not necessary to know [the migrants'] language. . . . In other crimes [migrants] have the right to a lawyer and judge, but not for this one. If so, can you imagine?"⁷⁴

In Ceuta, the national police complete a standard form for devolución, which requests individual information such as names, surnames, document status, and dates.⁷⁵ Migrants do not, however, receive copies of these forms nor do they actively participate in their completion. Rather, interviews are cursory and meant purely for the administrative task of completing this form, not for advising migrants of their legal rights or options, nor for providing them an opportunity to seek meaningful access to counsel.⁷⁶

The 2001 Annual Report of the Ombudsman reports that its investigation of procedures in Ceuta revealed that "there was no reliable evidence of the presence of a lawyer"⁷⁷ during return proceedings. Furthermore, according to the report, "[i]n some cases the signature of a third person appears, who is neither the government official nor the interested party and which could be that of the lawyer, except that the signature is not identified with the name and registered number of the lawyer, and in other cases, there is no third signature whatsoever."⁷⁸ Not surprisingly, the Ombudsman recommended that the Spanish government should take immediate steps to ensure that:

Individualized Case Determinations

Human Rights Watch's investigation revealed that North African migrants-Moroccans and Algerians-found illegally entering Spain via the cities of Ceuta and Melilla or along the Andalucian coast are frequently returned by devolución to Morocco in a manner that denies them meaningful access to an individualized case determination in violation of regional and international law.⁸⁰

Upon their arrest in locations such as Ceuta, Algeciras, and Tarifa, many migrants are held in police station cells⁸¹ only for the necessary period of time to process their paperwork and repatriate them by devolución-frequently less than twenty-four hours.⁸² A representative at the national police station in Melilla indicated that they use similarly swift procedures for devolución, explaining that migrants who come to register at the station "have to just wait at the station for the decision of the Government Delegate because if it is devolución it could happen in one hour."⁸³ Spanish authorities routinely process entire groups of migrants at once, denying individual consideration of cases and consistently failing to provide meaningful translation or legal services to migrants. Moreover, current methods for assessing migrants' nationality-a condition for their return-are unreliable, arbitrary, and primarily directed at one migrant group, Algerians.

The official attitude is that these migrants are in Spain illegally and should simply be returned as quickly and efficiently as possible, such as, on the next ferry or in groups by police van:

As the chief of police in Algeciras stated in an interview with Human Rights Watch, the process of deporting migrants from Algeciras to Morocco is "very simple. We start the procedure for devolución and ask the sub-delegate of the government to sign off on the paperwork. We inform the migrant and then take them to the port, then Morocco, and then to the Moroccan police."⁸⁵

Representatives of nongovernmental organizations working with migrants in Ceuta and along the Andalucian coast reported that above all deportations are quickly arranged and typically determined on a group basis. For example, according to Algeciras Acoge, the main migrants' legal and social support organization in Algeciras, the main port city for ferries to and from Morocco from the Andalucian coast, migrants sent back to Morocco by devolución "all have one paper and are considered as a group. It is automatic; the police [when ordering their return by devolución] just change the name in the computer."⁸⁶ Activists in Ceuta also described deportation practices that suggest migrants are being expelled to Morocco in the absence of individualized case determinations. One activist told Human Rights Watch that all of the documents for deportations to Morocco are processed together, regardless of whether there is one migrant or fifteen in the group, and that the "lawyer thinks it's his or her duty to just sign the papers at the end."⁸⁷ There appears to be no official record of the migrants repatriated by devolución. Rather, "[o]nce they have been deported, they don't exist. It is as though they've never come."⁸⁸

Research indicated that for Algerian migrants these barriers to individualized case determination are further compounded by the absence of formal identification procedures in place to help determine the nationalities of individual migrants. Spanish authorities currently use informal means of labeling migrants as coming from a specific country, making nationality determinations on the basis of physical appearance, linguistic abilities, and the personal opinions of the Moroccan border police who have the closest contact with migrants in Spain. Because of Morocco's resistance to readmitting non-Moroccan nationals, the practice appears to most affect Algerian migrants whom the police determine to be "Moroccan."⁸⁹

Spanish authorities in Ceuta and Melilla and along the Andalucian coast repeatedly told Human Rights Watch that many migrants who say they are Algerian are actually Moroccans trying to gain illegal entry to Spain. The following statement by an officer of the Civil Guard on the Andalucian coast is a prime example:

When Human Rights Watch asked if it was possible that migrants who are Algerian were ever mislabeled Moroccan and sent back to Morocco by the process of devolución, the officers admitted that:

The Government Delegate in Ceuta expressed concern that establishing migrants' nationality is complicated by the sale of false passports. Consequently, the task of ascertaining whether a migrant is Algerian or Moroccan falls to the Spanish police "experts" in Ceuta: "[they] have to find out-that is their job-if they are from Algeria. If there is any doubt we take them to the Moroccan authorities and with their help we can establish whether they are Moroccan or Algerian. In 90 percent of the cases it is confirmed that they are Moroccan."⁹² Similarly, the deputy chief of documentation at the national police station in Ceuta told Human Rights Watch that police station interpreters determine these migrants' nationality by "talk[ing] to them and listen[ing] to their accents or dialects. If anyone suspects they are Moroccan we try to send them back to Morocco. The Moroccan police then interview them and if they think they're Moroccan, accept them back."⁹³

Human Rights Watch is concerned about the absence of a formal process-with appropriate guidelines for police and other responsible immigration authorities-to make determinations about nationality. The informal identification procedures described above are unreliable, arbitrary, and possibly discriminatory. As the situation currently stands, Algerians may be incorrectly labeled as Moroccan and sent back to Morocco without any opportunity to prove their nationality.

Repatriation of migrants by devolución, as it is currently practiced, does not appear to afford migrants an individualized process with the necessary procedural guarantees set forth in domestic, regional, and international law. Rather, Human Rights Watch is concerned that Spain's devolución policy is implemented such that migrants are almost immediately returned to Morocco on the basis of an inadequate decision process for their removal. This process fails to provide individual migrants with meaningful access to procedural guarantees such as legal and interpretation services, information on their rights, and, in the case of Algerian migrants, a fair and predictable process for assessing their identity and nationality.

Appeals

Although under Spanish law migrants have the right to appeal an order for their deportation,⁹⁴ the practical obstacles to mounting a successful appeal make it virtually impossible for migrants to exercise this right.

Human Rights Watch's research revealed, for example, that in Ceuta few migrants are aware that their documents are expulsion orders, much less that they have the right to appeal the orders. They lack sufficient knowledge about their legal status and about ways to seek legal aid. Moreover, it appears that in some cases police issue migrants their documents after the forty-eight-hour appeal period has passed or at the start of a weekend, when seeking legal services or filing an appeal would not be possible.⁹⁵ When Human Rights Watch raised these concerns with the Government Delegate in Ceuta, he informed us that there are many "law offices in Algeciras to take on [expulsion] cases. [The Algerians] have more than enough time to lodge an appeal within forty-eight hours. They already have the papers for appeal with them."⁹⁶

Lawyers working with migrants in both Ceuta and Melilla indicated that even if migrants realize they can and should appeal an expulsion order, they still face barriers to meaningful review.⁹⁷ A lawyer for the Melilla Bar Association, for instance, explained that in Melilla "lawyers appeal the cases in forty-eight hours but it is not a real appeal. It is just a way to say you do not agree. The police don't even answer; they just continue with the process as before."⁹⁸

The procedure followed for appeals in cases of devolución further highlights the futility of such efforts. In Ceuta, for example, if a migrant appeals his repatriation by devolución, he will be transferred to the border where he must wait an hour or so for an answer from the Government Delegate on his application to appeal.⁹⁹ The appeal is purely administrative and is considered by the same authority that ordered the devolución of the migrant in the first place.¹⁰⁰

Moreover, the appeal has no effect on the process of deportation without a separate judicial order suspending deportation until a decision on the appeal has been reached.¹⁰¹ As the head of the foreigners and documentation department of the Spanish National Police headquarters in Madrid Manuel Prieto observed, appealing in cases of "devolución is more difficult because of the length of time."¹⁰² In fact, it would be virtually impossible for a migrant to lodge an appeal and receive a judicial suspension of deportation pending determination in less than the forty-eight hours it typically takes to repatriate North Africans to Morocco by devolución. Consequently, the technical right to appeal an order for devolución is merely symbolic.

58 See Article 22(1) of Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration). See also Section 5.a, Articles 137(2) and 138(2) of the Regulations for the Application of Spanish Law on Foreign Nationals. Spanish law specifies that migrants should have access to counsel not only during legal procedures, but also during prolonged administrative detention. See Article 63(2) of Law 4/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration), amended by Law 8/2000, in combination with Section 2.a (Internment Centers for Foreigners), Article 128(1) of the law's Regulations for the Application of Spanish Law on Foreign Nationals. See also Spanish law on internment centers (published in Boletín Oficial del Estado, no. 47, pp. 7681-7688), February 24, 1999.

59 Article 62 of Law 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration) in combination with Section 2.a (Internment Centers for Foreigners), Article 127(1) of the law's Regulations for the Application of Spanish Law on Foreign Nationals.

60 See generally Law 8/2000, Article 21.

61 Article 63(2) of Law 4/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration), amended by Law 8/2000, in combination with Section 2.a (Internment Centers for Foreigners), Article 127(7) of the law's Regulations for the Application of Spanish Law on Foreign Nationals. See also Spanish law on internment centers (published in Boletín Oficial del Estado, no. 47, pp. 7681-7688), February 24, 1999. Authorities are also required to provide detained migrants with information about the place in which they are being detained, including information on their rights. See Article 62 of Law 4/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration), amended by Law 8/2000, in combination with Section 2.a (Internment Centers for Foreigners), Article 129 of the law's Regulations for the Application of Spanish Law on Foreign Nationals. See also Spanish law on internment centers (published in Boletín Oficial del Estado, no. 47, pp. 7681-7688), February 24, 1999.

62 Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the European Convention on Human Rights (ECHR) guarantee the rights to liberty and security of person and provide, among other things, that any person deprived of her or his liberty must have an effective opportunity to challenge the lawfulness of their detention before a court. In its General Comment No. 8, the United Nations (U.N.) Human Rights Committee interpreted ICCPR Article 9 to include "all deprivations of liberty, whether in criminal cases or in other cases such as...immigration control." United Nations Human Rights Instruments, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.4, February 7, 2000, p. 88, para. 1. The European Court of Human Rights has ruled that migrants in detention enjoy the basic procedural guarantees enshrined in ECHR Article 5, including the right to effective review of the legality of their detention by a court. See Dougoz v. Greece, 40907/98, March 6, 2001. See also The U.N. Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted by U.N. General Assembly Resolution 43/173, December 9, 1988.

63 Spanish Law 9/1994 (May 19) (published in Boletín Oficial del Estado, nos. 122 and 131), amending Law 5/1984 (March 26), Regulating Refugee Status and the Right to Asylum, Chapter Two, Article 4(1); Royal Decree 203/1995 (February 10) approving the Implementation Regulation [hereinafter "Implementing Decree"] of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 19) (published in Boletín Oficial del Estado, no. 52, 2 March 1995), Articles 8(4) (request made within Spanish territory) & 19(2) (requests made at border points); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1992), para. 192. For more detailed discussion of the international and regional standards on the treatment of asylum seekers and the ability of migrants arriving to Spain in the Canary Islands to access asylum, see Human Rights Watch, "The Other Face of the Canary Islands: Rights Violations Against Migrants and Asylum Seekers," A Human Rights Watch Report, vol. 14, no. 1 (D), February 2002.

64 See Implementing Decree of Law 5/1984 (March 26) regulating Refugee Status and the Right to Asylum, which was amended by Law 9/1994 (May 19), Section 1, Article 5(1).

65 See Article 13 of the ICCPR; Article 32 of the Convention Relating to the Status of Refugees; Protocol No. 4, Article 4 and Protocol No. 7, Article 1 of the ECHR; and Article 19(1) of the Charter of Fundamental Rights of the European Union. See http://www.europarl.eu.int/comparl/libe/elsj/charter/art19/default_en.htm#2 (accessed June 10, 2002).

66 Not his real name.

67 Human Rights Watch interview with twenty-two-year-old Algerian migrant, Ceuta, October 18, 2001.

68 Ibid.

69 Human Rights Watch interview, Ceuta, October 18, 2001.

70 Human Rights Watch interview, Manuel Prieto, head of foreigners and documentation department, José García Santalla, chief of central foreigners unit (Foreigners and Documentation Department), and José Ramón Pérez García, chief of statistics, Spanish National Police (within the Ministry of Interior), Madrid, November 14, 2001.

71 Human Rights Watch interview, Asociación Pro Derechos Humanos, Mario Arias, Tarifa, October 15, 2001.

72 The Spanish term Colegio de abogados translates as "bar association." Thus, although the colegios differ from bar associations in some countries in a number of ways, the term "bar association" is used throughout this report when referencing colegio de abogados lawyers. Colegios de abogados in Spain are not associations, but cooperative entities with an important role in the administration of justice. Among other things, they work directly with the Ministry of Justice in order to provide court-appointed lawyers and to supply legal aid lawyers for nationals and non-nationals when required. Only people who have a certified diploma of law may be a member of a colegio and only lawyers formally registered in a colegio (and paying taxes and meeting other colegio obligations) may work as lawyers in Spain. There is at least one colegio per province in Spain. Within the colegios there are a number of special departments, including a department on foreign affairs that deals with immigration matters. Colegio lawyers who have registered for a particular division are called when there is a need for their services. They perform the services on a pro bono (free) basis to the client, but are paid for their work by the colegio.

73 Human Rights Watch interview, police officer, Spanish National Police, Melilla, November 9, 2001; Francisco Javier Arias Herrera, lawyer for the Colegio de Abogados, Melilla, November 9, 2001.

74 Human Rights Watch interview, officer of the Civil Guard, Andalucian coast, October 16, 2001.

75 Human Rights Watch interview, Luis Vicente Moro, government delegate for the autonomous city of Ceuta, Ceuta, October 19, 2001; Human Rights Watch interview, Spanish National Police in Ceuta, Ramón Capdevila, deputy chief of documentation, Ceuta, October 19, 2001.

76 Human Rights Watch interview, Spanish National Police in Ceuta, Ramón Capdevila, deputy chief of documentation, Ceuta, October 19, 2001.

77 Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, Section 3.1.2.2, "The Center for the Temporary Residence of Immigrantes (CETI) in Ceuta," p. 64.

78 Ibid.

79 Ibid.

80 Migrants who are found illegally entering Spain from Morocco may be returned to Moroccan authorities in accordance with a 1992 re-admission agreement signed between Spain and Morocco. However, because Morocco typically does not accept the return of non-Moroccan nationals, the practice of devolución, or immediate repatriation in accordance with the agreement, has been reserved for Moroccans, and for Algerians whom the authorities believe to be Moroccan.

81 According to the Ombudsman, a number of these facilities fail to meet minimum requirements for detention. Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, section 3.1.2.4, "Entry of undocumented persons via the Andalucian coastline," pp. 65-66.

82 Human Rights Watch interview, Spanish National Police in Ceuta, Ramón Capdevila, deputy chief of documentation, Ceuta, October 19, 2001, noting that the police return groups of eighteen or more migrants to Morocco "easily six times a day;" Human Rights Watch interview, chief of police, Spanish National Police, Algeciras, October 15, 2001.

83 Human Rights Watch interview, Melilla, November 9, 2001.

84 Human Rights Watch interview, Eduardo de Quesada, deputy director of foreign affairs, Ministry of Foreign Affairs, Madrid, November 13, 2001. See also Human Rights Watch interview with Rocío Rodríguez Bayón, chief of cabinet, Office of the Government Delegate for the autonomous city of Melilla, Melilla, November 9, 2001. When asked to identify a clear and consistent determination process used in devolución cases or procedural guidelines meant to ensure the protection of migrants' human rights, Chief of Cabinet Rodríguez explained that "[f]or the devolución process migrants have been forbidden entry to Spain. It's not that the process has begun. They are not allowed to be in Spain and they know it." Ibid.

85 Human Rights Watch interview, chief of police, Spanish National Police, Algeciras, October 15, 2001.

86 Human Rights Watch interview, Algeciras Acoge, Hassan Yetefti and Jose Villahoz Rodríguez, October 15, 2001.

87 Human Rights Watch interview, Tomás Partida, Ceuta, October 17, 2001.

88 Ibid.

89 See also explanation in footnote 80.

90 Human Rights Watch interview, officers of the Civil Guard, Andalucian coast, October 16, 2001.

91 Ibid.

92 Human Rights Watch interview, Luis Vicente Moro, government delegate for the autonomous city of Ceuta, Ceuta, October 19, 2001.

93 Human Rights Watch interview, Spanish National Police in Ceuta, Ramón Capdevila, deputy chief of documentation, Ceuta, October 19, 2001.

94 Law 8/2000, Article 21.

95 For example, on the day that Human Rights Watch interviewed Hamid R. (see footnote 67) and his friend-October 18, 2001-migrants throughout the church-run facility where Hamid R. and his friend were staying told our researchers that fourteen Algerians would be going to Algeciras the next day. The men had just received their expulsion documents that day and had not yet received ferry tickets for the mainland. The plan was for them to meet in front of the police station in Ceuta the following morning, at which time the police would take them to the ferry and ensure their passage to the mainland. Yet, Hamid R.'s and his friend's papers were both dated October 17, 2001, leaving only part of a Friday afternoon to locate a lawyer and file an appeal against their expulsions. Human Rights Watch interview with twenty-two-year-old Algerian migrant, Ceuta, October 18, 2001.

96 Human Rights Watch interview, Luis Vicente Moro, government delegate for the autonomous city of Ceuta, Ceuta, October 19, 2001.

97 See e.g., Human Rights Watch interview, Lucrecia de Africa Benzo Montilla, lawyer for the Colegio de Abogados, Ceuta, October 18, 2001, describing practical and logistical problems migrants face when attempting to appeal.

98 Human Rights Watch interview, Francisco Javier Arias Herrera, lawyer for the Colegio de Abogados, Melilla, November 9, 2001.

99 Human Rights Watch interview, Spanish National Police in Ceuta, Ramón Capdevila, deputy chief of documentation, Ceuta, October 19, 2001.

100 Ibid.

101 Human Rights Watch interview, Manuel Prieto, head of foreigners and documentation department, José García Santalla, chief of central foreigners unit (Foreigners and Documentation Department), and José Ramón Pérez García, chief of statistics, Spanish National Police (within the Ministry of Interior), Madrid, November 14, 2001.

102 Ibid.