The inquiry initiated by Judge María Tardón of the National Court to investigate the massive influx into Ceuta on July 30 and 31 is progressing, as the Spanish government begins to address accountability and demonstrate a level of transparency towards its citizens that has been long overdue. The dismissal of the chief of staff for the government delegate in Ceuta marks the first political response to a crisis that has overwhelmed Pedro Sánchez’s administration. Following the formal inclusion of both the local and central governments in the investigation, the judge has requested all situational reports concerning the autonomous city from Moncloa, covering the period from July 1 to July 31, which have now been made public.
Judge Tardón aims to identify those responsible for inciting the surge, which she believes was premeditated and constitutes a form of “hybrid warfare” that threatens the independence of the state and facilitates illegal immigration resulting in reckless homicides (with 83 fatalities recorded). The opening of this investigation suggests that the culprits behind this unprecedented situation, deemed a “serious attack on the territorial integrity of Spain and affecting the peace or independence of the state” as well as the citizens of Ceuta, are believed to be in Morocco.
Legal Framework and State Responsibility
The National Court has jurisdiction to investigate these events because they involve a crime committed abroad, thus falling under the purview of the Central Courts in accordance with Article 23, section 3 of the Organic Law of the Judiciary (LOPJ), which delineates the Spanish jurisdiction for crimes of treason and against the peace or independence of the state committed by Spaniards or foreigners outside national territory. While the investigation seeks to clarify who instigated the mass entry, it does not preclude the examination of potential state accountability, as indicated by sources from the National Court. They clarify that the government’s involvement in the case does not hinder this inquiry.
Legal scholars consulted by ABC highlight the possibility of the investigation also addressing state liability due to the malfunctioning of public services regarding border surveillance on the Spanish side or crisis management following the influx. According to Jorge Álvarez, an expert in Administrative Law and a partner at Ontier, the critical question is whether the extraordinary situation faced by Ceuta and its residents can invoke the legal framework for state liability, specifically under the General State Administration's (AGE) competencies in border control, national security, immigration, and the oversight of state security forces through the Ministry of the Interior and the government delegation.
The government declared the situation as one of national security interest. It is clear that Ceuta’s daily life has been significantly disrupted. Álvarez outlines the applicable legal framework, noting that the legal regime for state liability is established in Law 40/2015, dated October 1, concerning the Legal Regime of the Public Sector, which states that individuals are entitled to compensation from the corresponding public administrations for any damage suffered to their property and rights, provided that such damage results from the normal or abnormal functioning of public services, except in cases of force majeure or damages that the individual is legally obliged to bear.
Álvarez emphasizes the importance of determining whether the damages outlined in the government’s decree regarding national security and the crisis it incited stem from a malfunction of public services, specifically a failure in the General State Administration to exercise its competencies effectively. He asserts that the criminal proceedings initiated by the National Court will be crucial in clarifying whether the events were unforeseen or inevitable by analyzing all existing reports (including those from intelligence services and state security forces) and collecting various types of evidence, such as witness testimonies.
In this context, Álvarez refers to two significant judgments from the Supreme Court that could serve as precedents: the Urquiola case from July 18, 1983, which delineated the concept of institutional fault, and the Isla de Hierro case from April 9, 2002. The former concluded that the death of the captain of the Urquiola resulted from a series of events initiated by the malfunction of public maritime cartography services, which could have been avoided with the proper functioning of maritime safety and rescue services, without any fault or negligence from the captain. The latter case condemned the state for the abnormal functioning of public services concerning navigational safety, which led to the sinking of the Isla de Hierro near the port of Málaga.
International Dynamics and Moroccan Responsibility
Carlos Fernández de Casadevante, a professor of Public International Law and International Relations at Rey Juan Carlos University, asserts that the events in Ceuta represent an act of aggression against Spain’s sovereignty and territorial integrity, organized and permitted by the Kingdom of Morocco, constituting a clear violation of international law. He questions why Morocco would cooperate with an investigation when it is evidently responsible for the aggression. Casadevante suggests that the published and unpublished reports reveal neglect on the part of the Spanish government and some ministers, which could lead to criminal liability for failing to act in light of the impending crisis. He describes the situation in Ceuta as an unprecedented historical case where a state is attacked, yet its government not only refrains from responding but also expresses gratitude for non-existent cooperation from the aggressor.
Analysts anticipate that the investigation will face challenges due to expected lack of cooperation from Morocco. Cynthia Favero, an expert in International Law, highlights that Spain and Morocco have a judicial cooperation framework that allows for the request of investigative measures from each other. However, she expresses skepticism about the effectiveness of such cooperation, particularly as the National Court is not solely investigating actions by individuals but also a potential organized operation linked to Moroccan security forces, which raises concerns about Moroccan sovereignty and security interests. The possibility of dual investigations—one by Spain and another by Morocco—over the same incidents could lead to jurisdictional and international judicial cooperation issues, creating further complications.
In conclusion, the legal complexities surrounding the investigation into the events in Ceuta are compounded by international dynamics and the potential for state liability. The outcome of the inquiry will depend heavily on the cooperation of Moroccan authorities, which is viewed with skepticism given historical precedents of Morocco's reluctance to engage in investigations implicating its security forces. The implications of this situation extend beyond national borders, intertwining issues of sovereignty, public service accountability, and international law.
As reported by abc.es.
