The young Sudanese who went to ask for asylum at the Spanish embassy in Rabat, together with his lawyer, Arsenio Cores, on December 13. Lawyers for "Basir" (Lawyers for "Basir"/EFE)
The Prosecutor's Office closed this Friday the investigation into the tragedy in Melilla on June 24 because it did not appreciate evidence of crime in the actions of the Spanish security forces.
The prosecutor rules out the crime of reckless homicide by not being able to conclude that the actions of the agents contributed in some way to the death of at least 23 migrants and refugees;
and it also does not appreciate a crime of omission of the duty to help because it considers that the civil guards were not aware of the risk situation in which the migrants were.
The decree, however, dwells for several pages on the "possible failures of a system" that allows people deserving of international protection to put their lives at risk.
He maintains that there is a lack of real mechanisms to request asylum, and calls for solutions.
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The Prosecutor's Office archives the investigation into the Melilla tragedy in which 23 people died
The prosecutor, Beatriz Sánchez, reflects on this aspect when referring to the 470 returns of people at the border that took place on June 24.
Unlike the Ombudsman, the Public Ministry does support the legality of this action, but recalls that the two rulings of the European Court of Human Rights and the Constitutional Court that judged this procedure do not endorse its "indiscriminate use", and warns that "A series of requirements" applicable to the Spanish State and to the ministries involved in migration policy must be observed.
Among them, the sentences assume that Spain must have adequate mechanisms to guarantee that refugees have "real possibilities of applying for a visa,
international protection or asylum in the Spanish diplomatic or consular offices in the countries of origin or transit or, even, in Morocco, as well as at the border posts of Ceuta and Melilla”.
In her letter, the prosecutor points out the difficulties that migrants, especially sub-Saharan Africans, have to access these routes.
"If measures were promoted to improve access to these channels [...] these jumps or the number of participants in them could be reduced," she underlines.
Requesting asylum at a border post, be it in Ceuta or Melilla, is almost an impossible mission and this is reflected by the Prosecutor's Office.
“The difficulties that migrants have, especially if they are sub-Saharan, to access the Spanish part of Beni Enzar [Melilla] are notorious, since this implies previously transferring the immigration control of the Moroccan police, which de facto keeps these people away from the border, many of which lack documentation that allows them to access Spanish territory”.
The asylum law, approved in 2009, also contemplates the possibility of requesting asylum before diplomatic representations, but the authorities have been hiding all these years in that there is no regulation in which the procedures that must be followed are developed.
The embassy route, however, can be applied if there is political will, as is happening (even with many limitations) with hundreds of Afghans who are resorting to this formula in the Spanish diplomatic missions in Pakistan or Iran.
In 2009, a circular sent to all embassies gave instructions for the ambassador to evaluate the cases and the risk faced by the person concerned and approve or not the issuance of a safe-conduct so that they can travel to Spain and formalize the process here.
The jurisprudence of the Supreme Court also established that the law has sufficient elements to be able to transfer an asylum seeker to national territory, regardless of whether or not there are regulations.
The practical impossibility of using the mechanisms to request asylum, an issue buried in the public debate, resurfaced after the tragedy in Melilla in June.
In fact, it has been the Minister of the Interior, Fernando Grande-Marlaska, who has repeated on several occasions that there are legal ways to request asylum in Spain without having to jump over a fence.
In his last appearance in Congress, the minister said: "Spain is a host country for any asylum seeker who knocks on our doors, but it cannot allow anyone to try to tear them down by force."
Almost six months after the tragedy, Spain has now found itself with a case that tests the authorities' compliance with the law and the veracity of that political discourse.
A 24-year-old Sudanese refugee, who precisely survived the tragedy in Melilla and who was expelled that day by the Civil Guard from national territory, went to the Spanish embassy in Rabat to request asylum on December 13.
He alleges religious persecution in his country and fear for his life in Morocco.
The embassy accepted and sealed his documentation but, since then, silence.
The deputy of the PP Ana Vázquez specifically asked Grande-Marlaska about this case last Wednesday in Congress: "Today, Mr. Minister, his life [that of this refugee] in Morocco is in danger, for reasons that no one is aware of, and you, Mr. Marlaska, have not yet opened the Spanish door, which he is urgently and desperately knocking on.
Do something, otherwise we'll have slammed the door in your face twice.
Are you going to guarantee the right of asylum?
What will happen with this case, Mr. Marlaska?
The minister avoided the question in his replies until he finally gave a generic answer: "All requests for international protection are studied and we have an Asylum and Refuge Office which, of course, has nothing to do with the one you had in June 2018″.
The legal team that assists the young man free of charge, Demos, Estudio Legal de Derechos Humanos, has warned of the danger he is running in Morocco after having taken the step of requesting protection.
He fears reprisals from the Moroccan authorities for having denounced being a victim of torture and inhuman treatment.
Since he went to the embassy, this young man remains semi-hidden and alert to the consequences of his decision.
To conclude her brief, the prosecutor affirms that it must be taken into account that "the migration crisis" is "a global problem" that "will foreseeably increase as a result of armed conflicts, pandemics and catastrophes derived from climate change."
And he adds: “The drama suffered by thousands of people in situations of poverty and risk in their countries of origin, especially in sub-Saharan Africa, inevitably leads to their fleeing to Europe in search of a prosperous life project for themselves and their loved ones, which which makes it necessary to enable flexible public migration policies that are consistent with the situation at each moment, in accordance with respect for the human rights of migrants and international treaties and conventions.”