Spain - Provincial Court of Melilla, 7 April 2015, Spanish Public Prosecutor (Ministerio Fiscal) v. Federación Andalucía Acoge, SOS Racismo del Estado Español, Asociación pro derechos de la infancia-Prodein, Asociación coordinadora de barrios (437/2014)

Country of Decision:
Country of Applicant:
Date of Decision:
Provincial Court of Melilla, Resolution of 7 April 2015, Appeal No. 437/2014
Court Name:
Provincial Court of Melilla, Section 7 (the “Court”).
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
European Union Law > EN - Charter of Fundamental Rights of the European Union
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
European Union Law > EN - Dublin II Regulation, Council Regulation (EC) No 343/2003 of 18 February 2003
National / Other Legislative Provisions:
Spain - Organic Act 10/1995 of the Criminal Code
Spain - Organic Act 2/1986 on the Security Forces and Corps
Spain - Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Act on Foreigners”)
Spain - Organic Act 4/2015. on Protection of Citizen’s Security
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary

The physical border around the enclave of Melilla is conformed by two fences and the intermediate zone created between them. The Spanish military police (Guardia Civil) considers that until a migrant has not overcome the second fence he or she has not entered into Spanish territory and therefore, Spanish law, including the Organic Act 4/2000 on the Rights and Liberties of Foreigners in Spain and their Social Integration (“Aliens Act”), does not apply to a migrant apprehended in the intermediate zone.

The Court ruled that, although this interpretation may violate international law, since there is no clear definition under Spanish law of where the border is located, the direct refusal of migrants who have reached the intermediate zone, does not constitute an administrative prevarication offence. 


The dispute in this case arises out of the so called “intermediate zone”, which is located between the two fences on Melilla’s border.

On 18 June 2014 and 13 August 2014, the Chief Colonel Commander of the Spanish military police (the “Police Chief”) forced migrants who had arrived to the intermediate zone to leave the territory, under the understanding that the migrants had not actually entered into Spanish territory.

Federación Andalucía Acoge, SOS Racismo del Estado Español, Asociación pro derechos de la infancia-Prodein, Asociación coordinadora de barrios (the “Organisations” or the “Plaintiffs”), appealed the Police Chief’s decision based on the guarantees established by  Spanish law and the Spanish Aliens Act. In particular, the Organisations claimed that the orders given by the Police Chief constituted an administrative prevarication offence, which is a type of criminal offence committed by a public officer when such an officer hands down an arbitrary decision in an administrative matter.

The public prosecutor (the “Appellant”) seeks the dismissal of the claim. In its opinion, the elements needed to commit an administrative prevarication offence are not fulfilled.

Decision & Reasoning: 

The issue in this case is whether the Police Chief’s decision constituted a prevarication offence under Spanish law.

Under article 404 of the Spanish Criminal Code, an authority or public officer commits an administrative prevarication offence when (i) the decision is administrative in nature, and (ii) the decision is arbitrary.

1. Whether article 404 of the Spanish Criminal Code was applicable

Here, the Court found that the orders given by the Police Chief were administrative decisions because he was in charge of the anti-intrusion operative in Melilla and gave the order to return the migrants and as such, article 404 was applicable.

2. Whether the Police Chief’s decision was “arbitrary”

As a preliminary matter, the Court found that the intermediate zone was under a de facto control by Spanish authorities, including the Police Chief’s, and therefore the decision to deport migrants had to comply with the Spanish Aliens Act. Here, the Court found that the Police Chief’s actions were not in accordance with the Aliens Act because they did not comply with the legal procedures for the return of migrants and the procedural guarantees for foreigners (i.e. individual assessment, including legal assistance and an interpreter where necessary, as well as, and the right to an effective remedy).

However, the Court noted that under article 404, the mere illegality of a public officer’s decision was insufficient for such a decision to be considered an administrative prevarication offence. The officer’s decision has to be arbitrary, conscious and serious. The Court explained that article 404 focused on the arbitrariness of public authority. Thus, although the Police Chief’s actions may have been illegal under the Spanish Aliens Act, the Court had to examine whether such actions were arbitrary.

Here, the Court noted several factors which pointed to the Police Chief’s decision as being non-arbitrary, and thus not meeting the requirements of the prevarication offence. These factors were:

(1)         The decisions of the Police Chief to return the migrants relied on a definition for the intermediate zone, which placed the zone outside of Spain’s borders. The definition of the intermediate zone and border was created by the General Directorate of the Spanish military police (Guardia Civil), and only applies to the Spanish Aliens Act. As such, the migrants did not cross the border into Spain.

The decisions were issued in the framework of Spain’s political agenda regarding immigration in the south border of Ceuta-Melilla. On one hand, the state is sovereign to determine its foreign policy (article 4.3 TFEU), and, on the other hand, international law imposes some basic rules which have to be respected, which are established in the Geneva Convention of 1951, the Dublin Convention of 1990 and the European Convention on Human Rights of 1950, among others. The Court states that in case of an eventual infringement of the International Law, it would be the Spanish state, not the Police Chief, that would be responsible for any infringement.

(2)         There were particular non-arbitrary circumstances that impacted the Police Chief’s decisions, including: (i) the instructions given to the police officers were limited to the massive assaults to the fence by migrants acting against the orders of the authorities and, occasionally, using violence against police officers, (ii) the decisions relate to the security of the border, and the Spanish Military Police is in charge of ensuring it and (iii) three border posts were located along the fence, and one of them was specially designated for asylum seekers.

In addition, the Court quotes an amendment of the Spanish Act on Foreigners, which was passed after the facts of this case occurred, which promulgates that foreigners detected on the border of Ceuta and Melilla attempting unauthorised entry, in a clandestine, flagrant or violent manner, will be rejected in order to impede their irregular entry in Spain.

The Court held that although the Police Chief’s decisions were against Spanish law, they were not given on an arbitrary basis and therefore, they did not constitute an administrative prevarication offence under article 404 of the Spanish Criminal Code. 


Appeal was accepted, the case was provisionally closed. 


This case summary was written by Linklaters LLP.

Other sources cited: 

Schengen Borders Code



Case Law Cited: 

Spain - Decision from the Supreme Court of 16 October nº1026/2009 (rec. nº 2097/2008)