SECRETARIAT / SECRÉTARIAT
SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITÉ DES MINISTRES
Contact: Zoe Bryanston-Cross Tel: 03.90.21.59.62
Date: 22/04/2020 DH-DD(2020)355
Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1377th meeting (June 2020) (DH)
Communication from an NGO (GENTIUM) (14/04/2020) in the case of Saber and Boughassal v. Spain (Application No. 76550/13)
Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
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Document distribué sous la seule responsabilité de son auteur, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1377e réunion (juin 2020) (DH)
Communication d’une ONG (GENTIUM) (14/04/2020) relative à l’affaire Saber et Boughassal c. Espagne (requête n° 76550/13) [anglais uniquement]
Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.
DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
DGI 14 AVR. 2020
SERVICE DE L’EXECUTION DGI Directorate General of Human Rights and Rule of Law DES ARRETS DE LA CEDH Department for the Execution of Judgments of the ECtHR F-67075 Strasbourg Cedex FRANCE Email: [email protected]
14 April 2020
COMMUNICATION In accordance with Rule 9.2 of the Rules of the Committee of Ministers regarding the supervision of the execution of judgments and of terms of friendly settlements by GENTIUM
CASE SABER AND BOUGHASSAL V. SPAIN (Applications Nos. 76550/13 and 45938/14)
I. INTRODUCTION
1. On 18 December 2018, the European Court of Human Rights (ECtHR) issued its judgment in the case of Saber and Boughassal v. Spain (Applications Nos. 76550/13 and 45938/14). The Court unanimously held that the Kingdom of Spain had violated the applicants’ right to respect for private and family life, protected by Article 8 of the European Convention of Human Rights (ECHR).
2. On 18 March 2019, the judgment became final, was categorised as a leading case and placed under the standard supervision procedure. The State’s Action Plan/Report on the execution of the judgment was due on 18 September 2019. At the time of writing, the government has not, however, submitted an Action Plan.
3. The case of Saber and Boughassal concerned the expulsion orders against two Moroccan nationals holding Spanish long-term residence permits. The expulsion orders resulted from their convictions to one year’s and three years’ imprisonment, respectively, for drug trafficking offences in Spain.
4. The Court found that the national authorities had failed to follow the criteria established by its case-law for assessing the necessity of the expulsion orders. It concluded that the authorities had failed to balance the applicants’ right to respect for their private or family life with other competing interests in order to ascertain whether the impugned measures – expulsion from the Spanish territory – were proportionate.
5. It is submitted that the violation of Article 8 in Saber and Boughassal stemmed from deficiencies in the Spanish legal framework and judicial practice. Therefore, devising general measure for the execution of this judgment requires ascertaining what changes must
1 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
be made to the legal framework and the practice of the courts of Spain in order to guarantee that the right to private and family life of convicted aliens holding long-term residence permits is adequately taken into consideration when deciding upon their expulsion.
6. This communication aims at setting out the framework for the elaboration of the State’s Action Plan by clarifying the legal framework relevant to the execution of the judgment and suggesting general measures necessary for the execution thereof.
7. It will show that recent case-law of the Spanish Supreme Court on the expulsion of convicted aliens holding long-term residence permits is contrary to the criteria established in the case of Saber and Boughassal v. Spain (Applications Nos. 76550/13 and 45938/14). Neither the Supreme Court nor High Courts in different regions of Spain (“Tribunales Superiores de Justicia”) are following the criteria set by the case-law of the European Court of Human Rights when applying Article 57.2 of the Law on Rights and Freedoms of Aliens, the relevant national legal provision. The Spanish courts are not adequately taking into consideration the right to private and family life of convicted aliens prior to deciding whether their expulsion from the Spanish territory should be ordered.
8. Therefore, legislative reforms or, at least, measures aimed at guaranteeing a change in the Spanish courts’ jurisprudence are needed in order to guarantee that the breach of Article 8 of the Convention in Saber and Boughassal v. Spain is not repeated.
9. About Gentium: Gentium is a Spanish non-profit association whose goal is to improve access to justice of victims of human rights violations belonging to vulnerable groups, notably through public interest and strategic litigation as well as capacity-building activities for lawyers. Gentium brings together lawyers, international human rights experts and researchers, all with experience in the human rights field.
II. LEGAL FRAMWORK RELEVANT TO THE EXECUTION OF THE JUDGMENT
10. In order to guarantee the non-repetition of the violations of Article 8 of the Convention in Saber and Boughassal v. Spain, it is pertinent to understand the legal framework and judicial practice from which they arose, and to ascertain whether the legal framework and the courts of Spain guarantee that the right to private and family life of convicted aliens holding long-term residence permits is taken into consideration when deciding upon their expulsion.
II.1. Applicable legal framework
11. The expulsion in Saber and Boughassal v. Spain followed an administrative decision under Article 57.2 of the Law on Rights and Freedoms of Aliens. This provision sets out the administrative proceeding for the expulsion of aliens when they have been convicted for a non-negligent criminal offence to a penalty entailing deprivation of freedom of over a year.
12. In addition, Article 57.5.b) of the said Law provides that long-term residents shall not be expelled unless their personal and family circumstances are considered. Nevertheless, as it
2 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
will be addressed below, this is problematic, as there is a recent set of case-law which deems Article 57.5.b) inapplicable to expulsions arising from a criminal conviction – i.e. from Article 57.2.
13. As it will be shown, the fact that Article 57.2 does not explicitly require authorities to balance the expulsion with the personal and family circumstances of the convicted alien who holds a long-term residence permit appears to be problematic in light of the case-law developments addressed below.
14. Besides, Article 63 determines that expulsions triggered under Article 57.2 shall follow a special procedure, which gives the concerned alien a 48-hour period to put forth arguments against the order of expulsion. This has been criticised for being a very limited period of time which makes access to a lawyer difficult, especially when the person concerned is imprisoned.1
15. This legal framework should be read together with Article 12 of Directive 2003/109/CE, of 25 November 2003, concerning the status of third-country nationals who are long-term residents. Article 12 sets out that, before taking a decision to expel a third-country national who is a long-term resident, Member States of the European Union are required to have regard to the duration of residence in their territory, the age of the person concerned, the consequences for the person concerned and family members and links with the country of residence or absence of links with the country of origin.
II.2. Judicial practice of the Spanish courts
16. These problems in the legal framework are exacerbated by a worrying line of recent case- law of the Spanish Supreme Court. In two judgments of February 2019, the Supreme Court held that:
“The «automatic» expulsion of long-term resident aliens convicted for non-negligent criminal offences to penalties of over a year, as set out in Article 57.2, is lawful with no need to apply Article 57.5 nor Article 12 of the Directive 2003/109/CE”.2
17. An analysis of domestic case-law conducted by Gentium shows that this reasoning by the Supreme Court that expulsions of convicted aliens, even if they hold long-term residence permits, are “automatic” has also been followed in judgments by several High Courts of Spain’s Autonomous Communities (“Tribunales Superiores de Justicia”).3
1 Esther Montero Pérez de Tudela, “Las opciones repatriativas en el ordenamiento jurídico español para el extranjero infractor: factores a tener en cuenta por los profesionales del tratamiento y los operadores jurídicos” (2019) Revista Electrónica de Ciencia Penal y Criminología, Issue 21-22, p. 1,
3 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
18. This narrow interpretation excludes the possibility of balancing factors weighing in favour of expulsion with competing human rights of the person concerned, in particular the right to private and family live under Article 8 of the Convention. This is contrary to the interpretation made by the European Court of Human Rights in Saber and Boughassal v. Spain, where it was stressed (at para. 47) that:
“[La Cour] rappelle à cet égard que l’ensemble des critères établis dans sa jurisprudence […] doivent être pris en compte et guider les instances nationales dans toutes les affaires concernant des personnes immigrées établies censées être expulsées et/ou interdites du territoire à la suite d’une condamnation pénale, au regard soit de l’aspect «vie familiale» soit de l’aspect «vie privée», en fonction des circonstances de chaque affaire”.
19. In addition, the Spanish courts’ interpretation seems to run counter a preliminary ruling of the Court of Justice of the European Union (CJEU) of 7 December 2017, issued following the request made by a Spanish judge. The CJEU held that, in accordance with Article 12 of Directive 2003/109:
“[A] decision to expel may not be adopted against a third-country national who is a long- term resident for the sole reason that he or she has been sentenced to a term of imprisonment of more than one year in duration”.4
20. It further concluded that Article 12:
“[P]reclude[ed] legislation of a Member State which, as interpreted by some of the courts of that Member State, does not provide for the application of the requirements of protection against the expulsion of a third-country national who is a long-term resident to all administrative expulsion decisions, regardless of the legal nature of that measure or of the detailed rules governing it”.5
II.3. Conclusion: persisting flaws in the Spanish legal framework and judicial practice
21. In conclusion, the inadequate legal provision – Article 57.2 of the Law on Rights and Freedoms of Aliens –, and judicial practice which are not in line with the reasoning of the ECtHR as well as an EU Directive applicable to Spain, seem to point towards the existence of systematic flaws leading to the expulsion of convicted aliens holding long-term residence permits which could perpetuate the situation addressed in Saber and Boughassal v. Spain.
5 February 2020, ECLI:ES:TSJBAL:2020:18; High Court of Justice of Aragón, Judgment 424/2019, 20 November 2019, ECLI:ES:TSJAR:2019:1912; and Judgment 430/2019, 21 November 2019, ECLI:ES:TSJAR:2019:1913; High Court of Justice of Andalucía, Judgment 2123/2019, 20 November 2019, ECLI:ES:TSJAND:2019:16612; High Court of Justice of the Valencian Community, Judgment 820/2019, 6 November 2019, ECLI:ES:TSJCV:2019:4946. 4 Court of Justice of the European Union, Judgment in Case C‑636/16, 7 December 2017, ECLI:EU:C:2017:949, para 28. 5 Ibid, para. 29.
4 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
II.4. Recent legislative developments
22. Finally, it is worth noting since the facts addressed in Saber and Boughassal v. Spain, the Spanish Criminal Code has been amended to include the expulsion of convicted aliens holding long-term residence permits.6 Article 89 of the Criminal Code provides for the expulsion of all aliens convicted to over one year’s imprisonment in substitution of their criminal conviction. Paragraph 4 of Article 89 nevertheless determines that convicted aliens shall not be subject to expulsion if this would produce a disproportionate result in light of their “rooting to Spain”.7
23. According to the available data, this kind of expulsion does not appear to broadly affect aliens holding long-term residence permits. The Spanish Attorney General’s 2019 Annual Report stated that in 2018, “the application of article 89 was very limited in relation to non- EU aliens with legal residence in Spain”.8 The report did not provide an exact figure; nevertheless, it found that the substitutive expulsion to legal residents would be “disproportionate in the majority of cases”, as the rooting to Spain has to be taken into account.9 In addition, scholarship has highlighted that a statistical analysis carried out by the Spanish General Secretariat of Penitentiary Institutions during the months of January and February 2016 showed that 78% of a total of 607 criminal convictions of imprisoned aliens did not even consider the application of Article 89 of the Criminal Code – i.e. only 136 of the convictions considered the application of such norm.10
24. Nevertheless, those figures are not conclusive. Therefore, and because the rationale of the ECHR judgement is equally applicable, it would be advisable to ask the Kingdom of Spain to provide reliable data on effective application of the ECHR jurisprudence when applying article 89 of the Criminal Code.
III. GENERAL MEASURES NEEDED TO IMPLEMENT THE CASE
25. In the light of the legal framework and judicial practice described above, Gentium deems it essential to amend Article 57 of the Law on Rights and Freedoms of Aliens in a manner that requires the authorities to balance the expulsion of convicted aliens holding long-term
6 At the time of the facts in Saber and Boughassal v. Spain, the Spanish Criminal Code did not allow the expulsion of convicted aliens holding long-term residence permits as a substitution for the conviction. The expulsion as substitution for a conviction was then exclusively applicable to convicted aliens residing unlawfully. 7 Although criminal and administrative expulsion may seem similar, Article 89 of the Criminal Code excludes from its scope convictions entailing deprivation of liberty different from imprisonment provided for in the Spanish criminal law system, such as the permanent location and personal subsidiary liability for failing to pay a fine. Such penalties nevertheless fall within the scope of Article 57.2 of the Law on Rights and Freedoms of Aliens, applicable to any conviction entailing the deprivation of freedom. Negligent criminal offences, excluded from the application of Article 57.2, fall nonetheless within the application of Article 89. 8 Attorney General of Spain, 2019 Annual Report, p. 829,
5 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
residence permits with their right to private and family life, to bring it in line with the Convention as interpreted by the Court in Saber and Boughassal v. Spain.
26. Such an amendment should explicitly introduce in the wording of Article 57.2 the consideration of convicted aliens’ personal and family circumstances. The legislation should reflect the following criteria established by the Court for assessing whether an expulsion measure is necessary in a democratic society and proportionate to the legitimate aim pursued:
- “the nature and seriousness of the offence committed by the applicant; - the length of the applicant's stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant's conduct during that period; - the nationalities of the various persons concerned; - the applicant's family situation, such as the length of the marriage, and - other factors expressing the effectiveness of a couple's family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; - and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled”.11
27. By introducing these criteria, the administrative expulsion of Article 57.2 would be set out in accordance with Article 8 of the Convention, the case-law of the European Court of Human Rights, and Article 12 of Directive 2003/109/EC of 25 November 2003, concerning the status of third-country nationals who are long-term residents.
28. The amendment of Article 57 has also been raised by Spanish scholarship. It has been suggested that:
“[I]t would be advisable to amend such Article in a way that it could include, at least, some exceptions referring to material rooting of aliens whose expulsion has not occurred according to criminal law and to avoid that the only concept of rooting is the formal one used in Article 57.5 of the Law on Rights and Freedoms of Aliens”.12
29. Pending the legislative reform, a communication should be issued by the State to the General Council of the Judiciary, the Supreme Court and the Attorney General, stating that Article 57.2 has to be interpreted in a way that balances the personal and family circumstances of the convicted alien with the expulsion order.
30. Data about expulsions following the application of Article 57.2 of the Law on Rights and Freedoms of Aliens are not widely available. Spanish Attorney General’s 2019 Annual Report stated that, during 2018, 568 convicted aliens were expelled under such legal
11 Üner v. the Netherlands [GC], no. 46410/99, Judgment of 18 October 2006, para 57. 12 Elisa García-España, “El arraigo de presos extranjeros: más allá de un criterio limitador de la expulsión” (2018) Revista Migraciones 44, 119, p. 141 [original in Spanish, translation by Gentium].
6 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
provision after having served their prison terms.13 Nevertheless, this information does not seem to reflect cases where convicted aliens were not in prison – perhaps because of a suspended imprisonment conviction –, neither allows the public to know how many of the expulsed aliens held long-term residence permits.
31. Accordingly, in order to monitor the execution of this judgment and ascertain the magnitude of the systematic issue that the case-law described above appears to suggest, it would be useful that the State shared with the Committee of Ministers the number of convicted aliens holding long-term residence permits who were expelled in application of Article 57.2 after the publication of the judgment on Saber and Boughassal v. Spain.
32. Further, as a guarantee of non-repetition, it would be advisable that the State provided judges with training on the case-law of the European Court of Human Rights relevant to this case.
33. Finally, although it has been noted that the expulsion on criminal grounds provided in Article 89 of the Spanish Criminal Code does not seem problematic, the exact number of convicted aliens holding long-term residence permits expelled following its application is unknown.
34. The publication of such exact data would be advisable for the execution of the present case. Additionally, the State should make available whether the personal and family circumstances of the expelled aliens were taken into consideration.
IV. CONCLUSIONS AND RECOMMENDATIONS TO THE COMMITTEE OF MINISTERS
35. Gentium expresses its concern about how the described case-law of the Supreme Court of Spain seems to have diverged from the reasoning of the European Court of Human Rights on the matter in Saber and Boughassal v. Spain by considering lawful the “automatic” expulsion of convicted aliens holding long-term residence permits regardless their right to private and family life.
36. Thus, in order to guarantee the execution of the case of Saber and Boughassal v. Spain and the non-repetition of the violations of Article 8 of the Convention occurred therein, Gentium invites the Committee of Ministers of the Council of Europe to:
(i) Request the Kingdom of Spain to amend Article 57 of the Law on Rights and Freedoms of Aliens in a way which requires authorities to balance the expulsion of convicted aliens holding long-term residence permits with their right to private and family life, in accordance with Article 8 of the Convention, the case-law of the European Court of Human Rights, and Article 12 of Directive 2003/109/EC of 25 November 2003, concerning the status of third-country nationals who are long-term residents.
13 Attorney General (No. 8), p. 827.
7 DH-DD(2020)355: Rule 9.2 Communication from an NGO in Saber and Boughassal v. Spain. Document distributed under the sole responsibility of its author, without prejudice to the legal or political position of the Committee of Ministers.
(ii) Pending legislative reform, request the Kingdom of Spain to issue a Communication to the General Council of the Judiciary, the Attorney General of Spain and the Supreme Court stating that Article 57.2 of the Law on Rights and Freedoms of Aliens has to be interpreted in a way that balances the expulsion order with the alien’s right to private and family life, in accordance with the aforementioned case-law and provisions.
(iii) Request the Kingdom of Spain to provide statistical data on the number of convicted aliens holding long-term residence permits who were expelled in application of Article 57.2 of the Law on Rights and Freedoms of Aliens after the publication of the judgment in Saber and Boughassal v. Spain.
(iv) Request the Kingdom of Spain to provide judges with training on the case-law of the European Court of Human Rights relevant to this case.
(v) Request the Kingdom of Spain to provide data on the application of the expulsion provided in Article 89.2 of the Criminal Code, specifically on the number of convicted aliens holding long-term residence permits expelled under this provision. Additionally, to request whether personal and family circumstances were taken into consideration prior to the expulsion.
37. Finally, as far as procedural matters, Gentium invites the Committee of Ministers of the Council of Europe to:
(i) Request, the Kingdom of Spain to present, without delay, an Action Plan/Report for this case, due since 18 September 2019.
(ii) In case of continued delay, transfer the execution of Saber and Boughassal v. Spain to enhanced supervision, in accordance to the Procedure and Working Methods for the Committee of Ministers’ Human Rights Meetings.
(iii) Call on the Kingdom of Spain to involve civil society in the elaboration and implementation of the Action Plan/Report for this case.
Drafted by Héctor Tejero Tobed Legal Consultant
Supervised by Rafael Cid Rico Director of Legal Strategy en ti u
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