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. * * * * * * * * * * * 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.