Spain / National Ombusdman (Defensor del Pueblo) (2016), 2015 National Report (Informe anual 2015), pp.300-301

Country

Spain

Title

Spain / National Ombusdman (Defensor del Pueblo) (2016), 2015 National Report (Informe anual 2015), pp.300-301

View full Case

Year

2016

Decision/ruling/judgment date

Thursday, February 25, 2016

Incident(s) concerned/related

Incitement to violence or hatred

Related Bias motivation

Race/Ethnicity
Nationality
Race/Ethnicity

Groups affected

Muslims
Migrants
Refugees & asylum seekers
EU citizens & nationals with migrant background
Third country nationals
Foreigners
Black people or of African origin
Other religious groups

Court/Body type

National Human Rights Body

Court/Body

National Ombusdman (Defensor del Pueblo)

Key facts of the case

The report of the Ombdsuman reflected that citizens raised concerns about the way a newspaper reported on the Melllla events stirring fear to migrants in what could be a crime of incitement to hatred under article 510 CC. An Ombudsman file was opened after numerous complaints requesting its intervention about the attempts of immigrants to irregularly climb the Melilla fence when the immigrants were arrested and immediately after returned through the so called 'hot expulsion' (devoluciones en caliente). The complainants claimed that the refoulement practices had left at least two people unconscious after the Melilla fence jump. The Chief of the Melilla Civil Guard in charge of the operation at the fence was later in the year indicted for the ' so-called “hot expulsions”. In its Annual Report 2015, the Ombudsman mentions concerns about the enforcement of the legislation in regard to discrimination and incitement to hatred on the grounds of race that led to the request for information to the Public Prosecutor. The Ombudsman case was concluded after the Public Prosecutor´s office informed that no proceedings had been initiated.

Main reasoning/argumentation

It was concluded that discrimination and provocation to hatred against foreign nationals for racist reasons, as of art.510 of the Criminal Code, may be taking place. This is In line with a previous Ombudsman recommendation (action nº 15009544) addressed to the Ministry of the Interior on security citizen´s protection and Rights of the foreigners within the return (devoluciones en caliente) process .

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The case invstigated discrimination and incitement to hatred against foreign nationals for racist reasons, as of art.510 of the Criminal Code, regarding the attempts of irregular entry of immigrants in the Melilla fence.
the Ombudsman questioned the legality and constitutionality of the special regime applicable in Ceuta and Melilla at the moment of the foreigners return (devolución) process and the protection of the immigrants´ rights, asking for a regulatory development of the special regime for Ceuta and Melilla (action nº 15009544) and for stopping the illegal expulsions.

Results (sanctions, outcome) and key consequences or implications of the case

The Ombdsuman reported on the case as completed after submission of recommendations to the public authority.
The Melilla Area Public Prosecutor reported that pre procedural proceedings had not been initiated
Informations published in the 2015 Spanish Ombusdman National Report (Informe anual 2015 Defensor del Pueblo), pp.301

Key quotation in original language and its unofficial translation into English with reference details

"La Fiscalía de Área de Melilla informó de que no se habían incoado diligencias preprocesales y el Defensor del Pueblo concluyó sus actuaciones)"

"The Melilla Area Public Prosecutor reported that pre procedural proceedings had not been initiated and the Ombudsman concluded its actions"

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