Spain - The Supreme Court of Spain (Tribunal Supremo), 10 February 2015, Administrative Appeal, Case Number 373/2014, ECLI:ES:TS:2015:807

Facts:

The Andalusian Association for Human Rights (Asociación Pro Derechos Humanos de Andalucía), the Spanish Federation of S.O.S. Racism Associated Societies (Federación de Asociaciones de S.O.S. Racismo del Estado Español) and the Andalusian Federation of Support (Federación Andalucía Acoge), together the “Appellants”, contested Articles 5.2, 7.3, 16.2.k, 11.4, 21.3, 42.8, 55.2 and 56 of the Operating and Internal Regulatory Regime of Immigration Detention Centres, as passed by Royal Decree Number 162/2014, of 14 March (the “Regulation”) on the basis of (i) being contrary to the deterrent and non-punitive nature of detention centres, and of (ii) infringing the Legal Act 4/2000, of 11 January, on the Rights and Freedoms of Foreigners in Spain and their Social Integration (the “Immigration Law”).

Decision & reasoning:

The Appellants requested that the following articles of the Regulation be declared illegal and therefore, annulled:

1                Article 5.2 (temporary or provisional detention centres)

The Appellants argued that the provision of Article 5.2 permitting the Government to place asylum seekers in provisional centres in certain circumstances infringes  Articles 16 and 18 of Directive 2008/115/EC and Article 61 of the Spanish Immigration Law (LO 4/2000, of 11 January) on the basis that under these articles immigrants can only be detained in “immigration detention centres” and provisional centres are not “immigration detention centres”.

The Supreme Court rejected the Appellants’ argument and upheld the validity of Article 5.2 on the basis that Article 5 actually sets out who is responsible for the creation of  various types of immigration detention centres and the institutions responsible for their existence and it does not mandate ex novo a specific type of detention.

2                Articles 7.3 and 16.2.k (the protection of detained families)

The Appellants argued that Articles 7.3 and 16.2.k of the Regulation infringe Article 17.2 of Directive 2008/115/EC and Article 18 of the Spanish Constitution on the grounds that under Articles 7.3 and 16.2.k family units are only provided with separate housing “if possible”, whilst detained persons can only be accompanied by their minor children as long as “the centre has modules able to guarantee the family’s unity and privacy”.

The Supreme Court held that the Directive imposes an unconditional obligation on Member States to provide separate housing to detained persons who are part of a family unit. Consequently, the Court annulled the conditional terms “if possible” and “the centre has modules able to guarantee the family’s unity and privacy”.

3                Article 11.4 (the use of firearms in detention centres)

The Appellants argued that Article 11.4 of the Regulation infringes Article 62 of the Immigration Law on the basis that members of the National Police in charge of security in detention centres should not carry firearms as a general rule because these centres should be subject to less stringent rules than penitentiaries where the general rule is precisely not to carry them.

The Supreme Court rejected the Appellants’ submission and held that detention centres are free to set their own internal rules regarding the carrying of firearms.

4                Article 21.3 (the possibility to request a new period of detention on the same grounds and as part of the same proceedings)

The Appellants argued that Article 21.3 of the Regulation infringes Article 62 of the Immigration Law on the basis that once a set detention period has ended, even if its duration has not reached the 60-day maximum it should not be possible to decide a new detention period on the same grounds and in the same proceedings for the period of the time remaining up to the 60-day maximum.

The Supreme Court upheld the Appellants’ submission and held that a detained person can only be detained for the second time if such detention is based on new grounds for the whole of the legally permitted period of time.

5                Article 42.8 (the suspension of the right to communicate)

The Appellants argued that Article 42.8 of the Regulation infringes Article 62 of the Immigration Law on the basis that the power to suspend a detained person’s right to communicate when they do not comply with internal regulations should only be exerted by means of a court warrant. 

The Supreme Court rejected the Appellants’ argument and held that such measures can be applied for non-compliance with internal regulations as a means to restore order, without the need for previous judicial authorization.

6                Article 55.2 (searching detained persons)

The Appellants argued that Article 55.2 of the Regulation is contrary to the Doctrine of the Constitutional Court as established in its Decision la STC 57/1994, of 28 February on the basis that for the search of a detained person to be justified two requirements must be met: (i) it must be a necessary means to preserve the order and security of the centre and (ii) it must be justified by the previous behaviour of the detainee (the “Conditions”).

The Supreme Court upheld the Appellants’ argument and concluded that the Conditions cannot be met in the alternative; they must both be complied with. Article 62 of the Immigration Law will apply in the interim.

7                Article 56 (unauthorised objects)

The Appellants argued that under provisions of the Immigration Law detainees are only deprived of their freedom of movement and of carrying certain objects with them. Therefore, the Regulation cannot impose a list of unauthorised objects on detainees.

The Supreme Court rejected the Appellants’ argument and held that the Immigration Law is broad enough to capture the legal enforcement of a list of unauthorised objects.

Outcome:

Appeal partially granted.

Observations/comments:

The decision of the Supreme Court includes three individual opinions. As part of these opinions, three magistrates expressed reasons disagreeing with some of the legal grounds expressed in the decision.

This case summary was written by Linklaters LLP.