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ARCHIVED - Express deportations at Spanish borders backed by the Constitutional Court
Only one clause of the controversial 2015 “gagging law” is found to be unconstitutional
There was widespread indignation in Spain in 2015 when the PP government introduced a new Citizen Security Protection Law which many felt denied people the right to make public protests, but more than 5 years after the so-called “gagging law” (or Ley Mordaza) came into force the Constitutional Court has ruled that it is almost entirely within the limits established by the Constitution and is therefore valid.
The law brought in far stiffer fines for offences such as preventing an eviction, climbing a monument, camping in the Paseo de la Castellana in Madrid or disturbing the peace in the vicinity of the Congress building, ranging from 100 euros to 600,000 euros, and the legislation met with widespread opposition from the moment it was first presented by the government in November 2013. Modifications were introduced but only members of the PP voted in favour of it in parliament, and opposition parties at the time announced that it would be repealed if the PP lost their majority at the general election later that year.
However, this did not happen when the PSOE eventually formed a government in 2018, and only now has the law been pronounced upon by the Constitutional Court. Their ruling is that the only unconstitutional element is the “unauthorized” taping of phone conversations by the police, which goes against the basic rights of citizens.
This means that one of the measures included in the Law which has caused most heated debate over the last five years, the legalization of the process by which illegal immigrants can be returned to their country of origin directly rather than by observing all the “correct” administrative procedures, is upheld and can continue to be implemented in the north African Spanish enclaves of Ceuta and Melilla. Basing their decision on the doctrine of the European Court of Human Rights, the magistrates of the Constitutional Court explain that returning migrants directly to Morocco is a way of “re-establishing legality immediately”, the only caveat being that all such actions should be carried out with judicial approval rather than merely on the recommendation of the Ministry of the Interior.
It is also specified that the forces of law and order must pay special attention to especially vulnerable migrants, including minors, elderly people and pregnant women. As a result of these clarifications, it is widely interpreted that the current procedures for sending migrants straight back to the Moroccan side of the border fences will have to be revised: at present, the security forces in Ceuta and Melilla simply send migrants back without identifying them and without studying individual cases.
The government’s initial response to these stipulations has been non-committal, with the Minister for the Exterior, Arancha González Laya, stating simply that “the government of Spain will continue to return migrants in compliance with the law”, although members of the Unidas Podemos party (which is in coalition with the PSOE in government) are known to be opposed to the practice.
The issue of migrants entering Spanish territory illegally is always a controversial one, and although at present the focus is on the crisis brought about in the Canary Islands by the sheer numbers of people reaching the islands from western Africa, the situation in Ceuta and Melilla has been making headlines for two decades. The practice of handing migrants straight back to the Moroccan authorities was first made public in 2014 (known as devolución en caliente, it usually consists of putting migrants who have managed to scale the border fences through back doors into the territory they came from) but it is widely accepted that it had been going on for at least 20 years, and it is interesting to recall that when the “gagging law” made it legal Pedro Sánchez, now Spain’s Prime Minister, was one of those who opposed it most vocally.
Since he took office in 2018, though, the government has continued to implement the policy and also to defend it, and now that it has received the backing of the Constitutional Court it seems unlikely that the practice will cease.
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