The Prosecutor's Office has warned the Canary Islands Government that the thesis with which it intends to make the State responsible for migrant minors who arrive on its coasts in pateras is not sustainable and also that it sees no reason to delay their entry into suitable reception centers.
"Unaccompanied foreign minors are always helpless. There is no clearer situation of a minor in need of protection than that of unaccompanied foreign minors," says the senior prosecutor of the Canary Islands, María Farnés Martínez, in a document advanced by El País to which Efe has had access.
The head of the Public Prosecutor's Office in the Canary Islands makes these reflections in the foundations of the decree that she made public on Friday - only its operative part - in response to the procedure that the Canary Islands Government intends to implement to curb the "disorder" in the reception of immigrant minors, a decree in which she warns that she is willing to open criminal proceedings for the crime of abandonment if the children are not received "immediately."
With more than 5,300 minors in the centers of the islands, the senior prosecutor recognizes the effort that the Canary Islands has made to care for the most vulnerable people among those who arrive in the cayucos, the children and adolescents without an adult family member to care for them, a task that "has been carried out in compliance with the legal system and from a Human Rights perspective."
The Canary Islands Government published a protocol on Thursday establishing a series of requirements that it demands the State to fulfill before handing over a minor: correctly identify them, interview them to determine if they are a candidate for refuge, and process an individual file. All of this, pending the final determination by the autonomous community of whether or not there is a free place for them.
The Prosecutor's Office amends this protocol both for reasons of form and substance. Regarding the form, it emphasizes that the protocol establishes requirements that are not in the law and, furthermore, intends to impose them on a third party, the State, something it cannot do; and, regarding the substance, it fears that it may harm the minor.
"Foreign minors are a group of people who have an extra layer of special vulnerability: because they are minors, because they are foreigners, and because they are alone. This circumstance directly determines their helplessness and, therefore, the need, ex lege, for the competent administration to take charge of them through administrative guardianship mechanisms," she points out.
And their protection "will never be the responsibility of the General State Administration," she adds, "unless the corresponding Statute of Autonomy is modified," because the guardianship of minors in need of protection falls in all cases on the community where they are located.
The Prosecutor's Office also warns that treating foreign minors in need of protection differently than Spanish children who suffer the same situation constitutes "clearly" "discrimination based on origin" that the Spanish Constitution and the Convention on the Rights of the Child do not allow.
"The published protocol does not state what the possible consequences are of the autonomous community not exercising the competence assigned to it by law, such as the immediate protection and assistance of minors," she points out.
Regarding the procedures that the Canarian Government intends for the Police and the Prosecutor's Office itself to carry out before handing over a child, she emphasizes that the new protocol "does not take into account or analyze the repercussions that police intervention may have on minors, especially if they are foreigners and alone."
The senior prosecutor agrees that the minor must be heard to try to protect their rights and interests in the best way possible; however, she warns that this is not something that can be dispatched in the first moments of their arrival in Spain and without observing the due guarantees.
"It is clear that a minor who has just arrived on land after a journey in which they have endangered their life is not in a position to be heard with guarantees, much less, as the protocol seems to suggest, that they state that they have a family member or relative somewhere other than the Canary Islands and that, therefore, action should be taken in that sense, as this would imply a clear risk for the minor," she argues.
The Public Prosecutor's Office also questions that the Government of the Canary Islands intends to demand bureaucratic procedures in situations that are "urgent," among other things, it recalls, because the Minor's Law says that "when the urgency of the case requires it (...) the action of social services will be immediate."
"There is no reason to subject a small child who arrives alone to a procedure that does not exist in the law and delay their entry into a suitable minor's center, which is where the law establishes that they should be. Without a doubt, the application of this protocol allows the permanence of undoubted minors in police centers," the prosecutor points out.
