African immigrants sit at the top the border fence, as Spanish Civil Guard officers climb to reach them, during an attempt to cross into Spanish territories, between Morocco and Spain's north African enclave of Melilla, August 14, 2014.

(Milan) – There has been little progress toward justice for the drowning deaths of 15 migrants in waters off a Spanish enclave in North Africa on February 6, 2014, Human Rights Watch said today.

The Spanish Guardia Civil fired rubber bullets and teargas at the water while the migrants attempted to swim to Ceuta, one of Spain’s two North African enclaves, from Morocco.

“These were horrific deaths, and very serious allegations of wrongdoing by the Guardia Civil,” said Judith Sunderland, senior Western Europe researcher at Human Rights Watch. “The survivors and families of the victims deserve to know the truth and see justice done.”

Over the past year, nongovernmental organizations have reported instances of excessive use of force and summary returns by Guardia Civil officers at the enclave borders, in particular from Melilla, the other enclave. But rather than tackle these abusive practices, the Spanish government has sought to institutionalize a policy of summary returns. A deeply flawed public security law before the Senate would, among other things, formalize the summary return of migrants and asylum seekers from the enclaves to Morocco.

The European commissioner for migration, home affairs, and citizenship, Dimitris Avramopoulos, should use a visit to Ceuta and Melilla scheduled for March 2015 to insist on Spain’s full compliance with EU and international law at its borders, Human Rights Watch said. Automatic returns without any procedural safeguards constitute a clear breach of European and international human rights law and put asylum seekers and migrants at greater risk of abuse, Human Rights Watch said.

Spanish and international nongovernmental groups, as well as European members of parliament, have called on the commission to take firm action on excessive force by Spanish border guards and summary returns. The commission has said it is in dialogue with Spanish authorities from the enclaves, and “would not hesitate to take appropriate measures when there is evidence that a member state is violating EU law.” 

“Every year thousands of people risk their lives trying to reach Europe, and there is plenty of evidence to demonstrate that Spanish practices at its borders make those attempts even more dangerous,” Sunderland said. “If Avramopoulos is serious about tackling the EU’s dysfunctional migration and asylum system, he shouldn’t overlook the abuses in Spain’s enclaves.”

No Spanish officials have been indicted or officially disciplined for the tragic loss of life at Ceuta one year ago, and no one has resigned. Fourteen corpses were recovered, five in Spanish waters and nine in Moroccan waters. Survivor and family testimony indicates that another person, the only woman, died that day. Her body has never been recovered. Eleven victims were from Cameroon, while the other three whose bodies were recovered were from Guinea, Ivory Coast, and Senegal. The Spanish government acknowledged that 23 survivors who made it to shore in Ceuta were immediately handed over to Moroccan border guards.

Kakoly (a pseudonym), from Ivory Coast, told Human Rights Watch during a telephone interview on February 2, 2015, that he lost his best friend that day. Kakoly said he managed to reach the shore, though he was hit in the leg and just below his eye by rubber bullets and was returned to Morocco. He has received medical treatment with the help of a nongovernmental organization operating in Morocco, but still has trouble with the vision in his right eye. He is pessimistic about justice. “Me, a simple illegal, what power do I have to go seek justice?” he said. “We are accustomed to injustice.”

The judicial investigation into the deaths, injuries, and summary returns that day has proceeded at a snail’s pace. People close to the case told Human Rights Watch that the judge has taken few steps on her own initiative and has denied or delayed taking actions requested by the four Spanish groups and six family members who are civil parties to the case. Instead of directly questioning and taking testimony from Guardia Civil officers active in the operation on February 6, 2014, the judge has relied on written statements provided by the Guardia Civil.

In mid-December, the judge motioned for the case to be transferred to the Audiencia Nacional, the highest criminal jurisdiction in Spain, saying the local court had no jurisdiction because the deaths occurred in Moroccan waters. The Ceuta public prosecutor’s office appealed the judge’s motion, contending that the local court has jurisdiction. The Audiencia Nacional could at any time decide to take up the case.

The uncertainty over which court will ultimately assume jurisdiction raises concerns that there could be continued delays, Human Rights Watch said.

The ruling Popular Party used its absolute majority to block a motion in parliament to debate the creation of an ad hoc committee to investigate the February 6 events.

Attempts to enter Spain through Melilla and Ceuta – by sea, hiding in cars and trucks, and climbing the border fences – have increased since 2011. According to the Melilla local government, roughly 2,100 people succeeded in crossing the triple-fence barrier at Melilla in 2014, in over 70 separate group attempts. Media reports suggest that roughly 2,500 entered the enclave by other means. The local Ceuta government says 1,653 entered that enclave in 2014. The Moroccan deputy interior minister asserted in mid-January that it had thwarted 80 group attempts, and stopped 20,000 people from crossing into the enclaves during 2014.

Many who reach and climb the first fence around Melilla remain there, sometimes for hours, before the Guardia Civil force them down and return them to Morocco, as occurred with a group of about 100 people on February 2, 2015. At least nine people drowned on January 30 when their boat sank off of Melilla.

National and international human rights groups, including Human Rights Watch, have urged the Spanish parliament to reject the draft legislation that would provide legal cover for summary returns from the enclaves. The United Nations refugee agency (UNHCR), the Council of Europe Commissioner for Human Rights, and the European Commission have also expressed concern about the plan. Spain came under repeated questioning about summary returns in its recent peer review at the UN Human Rights Council.

“Spain should provide Kakoly with the justice he believes is out of his reach,” Sunderland said. “It should make sure that there is a full accounting for what happened that day, and that any officers suspected of responsibility for the death of his friend and of so many others are brought to trial.”