7 de julio, Comité de Derechos Humanos CT/15/20
6to Informe periódico del Estado Español ante el Comité de Derechos Humanos a la ONU en español puede encontrarse aquí: CCPR/C/ESP/6.
Nota de Prensa producida por el Servicio de Información de Naciones Unidas en Ginebra en inglés y francés:
The Human Rights Committee today completed its consideration of the sixth periodic report of Spain on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Ana Maria Menendez, Permanent Representative of Spain to the United Nations Office at Geneva, presenting the report, said that Spain’s relationship with the Committee had been continuous over the years. The Spanish Penal Code rejected all kinds of hate crimes against various communities and minorities. The Prosecutor’s Office for Equality and against Discrimination was fully operational. Companies were required to move towards balanced participation between men and women. Trafficking in human beings had been listed as an autonomous crime in 2010. The revised text on being held incommunicado reinforced the guarantees for the detainees, and legal justification and urgency were necessary for holding anyone incommunicado. The Victims of Crimes Act, adopted in 2015, provided victims not only with reparations for injuries caused, but also with psycho-social help.
In the dialogue that followed, Committee Experts wanted to know more about efforts to combat trafficking in human beings and measures taken to prevent forced labour. Treatment of migrants and asylum seekers, including their expulsion and conditions in migrant holding centres, in the autonomous cities of Ceuta and Melilla, was thoroughly discussed. Experts also raised issues of abortion, provisions of contraception, gender pay gap, and domestic violence. Subjects of incommunicado detention and rules for extradition were also addressed at length. Other issues raised by the Experts included forced sterilization of mentally disabled persons, operations of private security companies, responsibilities and effectiveness of the Ombudsman, dealing with historic cases, access to the archives, DNA sampling and excavating mass graves from the period of the dictatorship.
Committee Chairperson Fabian Omar Salvioli, in his concluding remarks, said that the dialogue had been very enriching, and the delegation had been well prepared. A number of issues, regarding torture, enforced disappearances, incommunicado detention, and public and private security, had been discussed, and concluding recommendations were likely to include those and other matters. The Chairperson did not see why there would be a problem establishing State responsibility in enforced disappearances; the Amnesty Law should not be an obstacle to it. The Committee was the only body to interpret the Covenant, the Chairperson stressed.
Ms. Menendez, in closing remarks, said that the delegation had endeavoured to answer all of the questions, and subsequent clarifications and full answers would be provided in writing within 48 hours. Civil society was thanked for being present. It was a pity that the dialogue had not been webcast; such interactions should be made public whenever possible. It was an ongoing dialogue, and the State party would accept the simplified reporting procedure for the following cycle.
The delegation of Spain included representatives of the Ministry of Foreign Affairs and Cooperation, State Prosecutor’s Office, Ministry of Justice, Ministry of the Interior, Ministry of Education, Culture and Sport, Ministry of Employment and Social Security, Ministry of Health, Social Services and Equality, and the Permanent Mission of Spain to the United Nations Office at Geneva.
The Committee will next meet in public today at 3 p.m., when it will consider the sixth periodic report of Canada (CCPR/C/CAN/6).
Report
The sixth periodic report of Spain is available here: CCPR/C/ESP/6.
Presentation of the Report
ANA MARIA MENENDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, presenting the report, said that Spain’s relationship with the Committee had been continuous over the years. Regarding the fight against racism and xenophobia, the Penal Code rejected all kinds of hate crimes against various communities and minorities. More than 20,000 civil servants, including members of the security forces, had been trained to identify and register racist incidents. The Prosecutor’s Office for Equality and against Discrimination was fully operational.
Companies were required to move towards balanced participation between men and women. On corporate boards, women should be represented by at least 30 per cent in 2020. Progress had also been made in the audio-visual taping of hearings in police stations. In 2014, a domestic regime had been approved for migrant hosting centres. The regime of guarantees and legal controls had been perfected, and the Ministry of the Interior had signed an agreement with the Spanish Red Cross on providing assistance in centres for holding foreigners.
Fighting violence against women was one of the priorities of the Government, and a national strategy for 2013-2016 was being implemented. Free legal counsel was provided to the victims of gender-based violence. Any foreign citizen, regardless of their status in Spain, could submit a complaint on cases of gender-based violence without hindering their status. Spain had provided specific statistics on the number of complaints received and sentences handed out between 2010 and 2014, as requested by the Committee. Trafficking in human beings had been listed as an autonomous crime in 2010. A comprehensive plan had been put in place in 2009, and would soon be replaced by an updated plan. Offices for international protection in the autonomous cities of Ceuta and Melilla had opened in September 2014, and constituted a significant step towards facilitating access to international protection.
Regarding persons deprived of freedom, an organic law was in procedure. The revised text on being held incommunicado reinforced the guarantees for the detainees. Legal justification and urgency were necessary for holding anyone incommunicado. Judges and security forces were already adjusting their behaviour to the exceptional context of holding anyone incommunicado. Only eight per cent of detainees being held for the crimes of terrorism were held incommunicado in 2015. They were provided with medical assistance on a daily basis. With regard to the protection of unaccompanied minors on Spanish territory, a framework protocol had been signed in 2014, which was based on the principle of the primary interests of the child. Foreign minors had the right to education, health and social services, the same way as Spanish minors.
Ms. Menendez said that there was a draft law in the Parliament to strengthen procedural guarantees to free trial. Those changes were in compliance with the latest recommendations by the Committee. The victims of crimes act, adopted in 2015, provided victims not only reparations for injuries caused, but also psycho-social help.
Questions by Experts
An Expert invited Spain to consider accepting the simplified reporting procedures.
He asked about a protocol on accepting individual communications. What was the position of Spain on the principle of good faith regarding observations and recommendations emanating from the Committee?
Turning to the issue of human trafficking, the Expert said that Spain had some of the best standards on protection and prevention in that regard. Nonetheless, Spain was still a transit and destination country. Could the delegation provide statistics regarding reparation to victims? More information was sought on domestic trafficking. There was a gap in identifying victims of trafficking. Was training of judges taking place? What was being done to prevent re-victimization?
Another Expert raised the issue of anti-discrimination provisions and noted the absence of a comprehensive act on that matter. Was there any plan to adopt such legislation, on the basis of the 2011 draft? More information was sought about the status of the council against discrimination. Were there plans to transform it into a fully independent body?
The Ombudsman continued to play an important role, but relatively few of the cases before him expressly concerned discrimination. What concrete steps were being taken to promote the Ombudsman’s role in combatting discrimination?
What were the most concrete results in the achievement of equal opportunities for men and women, the Expert inquired. How many multiple discrimination cases had been registered, in which being female was one of the elements?
The Committee was encouraged that there had been a decrease in the cases of domestic violence. Could information be provided on female minor victims of domestic violence, and among the Roma communities, both domicile and recent arrivals?
On access to abortion, an Expert asked the delegation to comment on various restrictions stemming from the 2012 law. Did girls between 16 and 18 need to receive the explicit authorization of their parents? Statistics and relevant examples of case law were sought. How many abortions had been provided in public health centres over the previous few years?
Questions were also asked about national health services providing contraception.
An increasing number of persons with disabilities was reportedly denied their legal capacity, such as the right to vote. Could some statistics be provided? The issue of forced institutionalization, including sterilization without consent, was also raised.
Turning to the issue of torture, another Expert asked about allegations that medical services had not been provided to persons held in detention. An update was sought for two specific cases. The Expert wanted to know why three officials found guilty of torture had been pardoned; that could establish a feeling of impunity.
The Private Security Act, which had entered into force in 2014, regulated activities of the private security sector. Would those entities have the right to deprive individuals of freedom and survey public spaces? Did those private security companies fall under the remit of official security agencies?
More information was requested about reparations to the victims of human rights violations committed during the dictatorship in Spain. Enforced disappearances were an ongoing crime. Too much burden seemed to be placed on the families of victims. What were the legal reasons for rejecting cooperation with Argentinian officials in that regard? What was the way forward?
An Expert said that the Committee recognized that Spain was under increasing pressure from the influx of migrants and asylum seekers, but the State party should do all it could to protect their human rights. Were those in migrant-holding centres called by their names? Three types of ill-treatment – by staff, other detainees and violence in the two autonomous cities – were raised and clarification was sought. What inspections of migrant-holding facilities had the police forces conducted? Was information in different languages available to migrants? What oversight and remedies were available for allegations of mistreatment in the autonomous cities?
Clarifications were asked on the process of declassification of the archives of the Franco era. How about taking of DNA samples for the purpose of identifying victims of that period?
Could more information be given on the case of Ali Arras in 2011, who had been extradited by Spain to Morocco, only to suffer serious torture there? Why had Spain not complied with the recommendation of the Committee in that regard?
Responses by the Delegation
Regarding the jurisprudence of the Constitutional Court from 2005 which had stated that the Committees did not form part of the domestic legal structure, the delegation said that domestic rulings could not be overruled by an international body. It was only through special procedures, such as was the case with the European Union, that international resolutions had direct applicability. Decisions by the Committees were not directly legally binding in Spain; those were not supranational bodies. In Spain, the last word lay with the Constitutional Court.
In the Ali Arras case, where the Committee had found a violation, Spain had followed domestic provisions and the domestic high court had not found evidence that there was suspicion of Mr. Arras being tortured if he was extradited.
The 1977 Amnesty Act was a law issued by a democratically constituted Parliament, the delegation emphasized. Extraditions requested by Argentina had been refused because of the agreement between the two countries on extradition, which read that no extradition should take place if criminal responsibility had not been established. The Committee was asking Spain to retroactively apply laws to crimes whose statute of limitations had already elapsed, which could not be done.
The law on the status of victims provided for comprehensive compensation to victims, financial but also through criminal proceedings and psycho-social support. Victims enjoyed various rights, including guarantee of safety and protection from reprisals. Special provisions were in place for minors, persons with disabilities and others who needed additional protection.
The delegation stated that persons with disabilities were provided with proper protection. The Criminal Code provided safeguards when it came to forced sterilization. Such acts would need to be approved by a judicial body, with the consent of the guardians. Those with mental disabilities who could understand the concepts of parenthood and did not want to be sterilized could not be sterilized against their will.
On granting pardons, the delegation said that the few cases mentioned by the Committee had been exceptional. The criteria were now stricter, and the Parliament needed to be briefed on the matter twice a year.
The delegation said that forensic doctors visited incommunicado detainees twice within every 24 hours.
In 2011, the comprehensive draft project law on anti-discrimination had been abandoned, but there were anti-discriminatory provisions in numerous other laws. The Council for Equal Treatment continued to be part of the Ministry of Health. It worked closely with the Institute for Women and Equal Opportunity. At the moment, the Council did not have a president, but its powers continued to be complied with, an example being a recent recommendation regarding campaigning for local elections.
Responding to the questions on gender equality, it was explained that legislation provided for a series of more than 200 measures, the large majority of which had been implemented. The measures needed to be looked at in order to establish which had been the most successful. One success came from an initiative to support women entrepreneurs. In Spain, data was desegregated by sex, which helped identify the existing gaps.
On abortion, the delegation said that there was a proposal of an organic law going through Parliament now. One of the articles provided for consent for women who were between 16 and 18. The text had been drafted by a parliamentary group and had not been submitted by the Government. The rationale was the protection of the interests of the minor. Any health centre across Spain was obliged to follow the central laws. Regarding statistics, in 2013, the total number of abortions in Spain had dropped compared to previous years. Women below the age of 18 were about 12 per cent of all women going for abortion. Access to contraception was provided.
Turning to the issue of trafficking of women and children, the delegation informed that there were grants for projects to support victims of trafficking. In 2014, more than 76,000 women at risk had been contacted. There were 40 centres in Spain to provide support and care to women victims of trafficking. Prevention methods were provided for in a comprehensive programme to combat trafficking of women and children. The Ministry of the Interior had carried out training for 89 per cent of those working in the assistance network. The Ministry of Justice was also providing education on trafficking and gender violence and other Ministries were involved in their respective areas.
Spain was working on identifying and detecting women who were suffering from domestic violence. Awareness raising through mass and social media was conducted. More than 92 per cent of the population found domestic violence unacceptable, while the percentage among the young was still higher. Statistics showed that in 2014 150 cases had been involved in legal proceedings, when both the perpetrator and the victim had been minors.
Regarding the low level of complaints on discrimination against Roma, a delegate stated that indeed very few cases had been recorded and few complaints filed by the Roma. Perhaps a reason was the lack of trust towards the authorities. Information was provided through awareness-raising campaigns, and women were encouraged to complain when needed and validate their rights.
On the Second Human Rights Plan, the delegation informed that the First Plan had been assessed and needs identified to draft a new one. The draft diagnostic had been submitted for consultations to various Ministries, which had proposed measures to be included in the new plan. The process was indeed taking some time, but that was because consultations were detailed.
On equality between men and women in the labour market, it was explained that companies were assessed on various accounts, including promoting the position of women within their structures. Out of all companies inspected, 0.3 per cent of workers had been found to be experiencing some discrimination in terms of wages.
A delegate said that incommunicado detention in Spain was limited to very specific cases, and only eight per cent of those confined for terrorism were held incommunicado. Regarding the complaint from Argentinian doctors, the delegation did not have sufficient information on that, but could look into it and respond in writing within 48 hours.
In police forces, there was vigorous monitoring of internal affairs with the view of punishing any alleged cases of torture. Members of the police forces and law enforcement agencies were provided with all the measures necessary to conduct their investigations.
Private security was subordinate to the official security bodies and forces of the State. They did not operate in public spaces, and they always cooperated closely with official forces. When unlawful conduct was committed, their license was withdrawn.
Migrant holding centres had two functions: to deal with national security and to look after the security of persons interned there. Various services, including legal and social, were provided in the centres, by organizations outside of Spanish police forces. There were provisions for calling persons interned by their names and not numbers assigned to them. Regarding cases of ill-treatment in those centres, the delegation said that all complaints were not only investigated by the management, but impartial judicial investigations also took place, with medical assessment being regularly conducted.
Regarding the two autonomous cities of Ceuta and Melilla, Spanish security forces carried out border-surveillance activities, the delegation explained, in compliance with national and European Union norms. Those forces operated in difficult circumstances, while paying attention to the proportionate application of force.
On the repatriation of victims of trafficking, the delegation said that if the victim of trafficking decided to be voluntarily returned home, that was provided by the Government. The relevant body in the country of destination was subsequently informed. Recently, a bilateral agreement on that issue with Romania had been signed. The delegation said that the lowest sentence that could be handed down in cases of forced labour was eight years. In September, an annual report for 2014-2015 would be published, and the Committee would be provided with a copy.
Questions by the Experts
In a follow-up question, an Expert asked whether there were protocols in place for the use of force in the autonomous cities of Ceuta and Melilla. There were reports that migrants had been hit by batons, including a 12-year old. What training was provided to the border security and what oversight mechanisms were available? Had any investigations taken place?
Could the delegation provide more details on procedures in place in Ceuta and Melilla for returning and expelling migrants? Were these any different from those of other border posts? When would the asylum post in Ceuta be operational? What measures were being taken to prevent harassment of migrants by Moroccan border guards? Could specialized non-governmental organizations access migrant holding centres in order to independently assess migrant needs?
On incommunicado detention, the Expert recalled that Spain had been urged to end such a practice. The fact that incommunicado detention was currently applied to only eight per cent of all held on terrorism charges was appreciated. The Committee was concerned that the regime still continued to deny some fundamental rights. Were any changes to the current regime being contemplated at the moment? Was the burden of proof showing that incommunicado detention was truly necessary? In how many instances and for what kind of cases had incommunicado detention been applied since the last report? Was independent medical assessment provided for individuals who claimed to have been victims of torture?
What was the frequency of solitary confinement in the Spanish penitentiary system? The case of a Basque lawyer, who had been allegedly held in solitary confinement in pre-trial for over the year, was raised.
Referring to legal fees, the delegation was asked to elaborate on limitations with respect to non-nationals. What changes were contemplated with regard to free legal aid? Would undocumented migrants from outside of the European Union have access to free legal aid?
Another Expert observed that the rules on forced sterilizations still ought to be defined, and the Committee was looking forward to receiving details on that. Could there be possible conflict of interest between the guardian and the person affected?
Which Ministry controlled migrant holding centres, the Expert inquired. What were the occupancy rates, and were there cases of overcrowding? Were there enough personnel provided? How many people had been detained in those centres in 2013 and 2014, and how many among those were unaccompanied minors? Information was sought about several deaths that had occurred in the centres.
Regarding social protest, there were elements indicating that there could be some legal limitations to the freedom of assembly. There seemed to be limits in place for holding spontaneous demonstrations.
On excessive use of force by the police, the Expert asked for further information on specific instances, including the demonstration on 25 September 2012. Criminal proceedings in some cases had been dismissed, for which clarifications were sought. Did police badges include visible names of police officers in all circumstances?
More clarification was sought on the pardons in cases of torture.
With reference to the private security act, an Expert was hoping to receive more information in writing on their power of detention and other powers. The same was the case regarding the right to justice and the hopes of reconciliation.
The definition of terrorism was thought to be somewhat vague, an Expert noted. The notion of terrorist activity seemed to include people who were promoting its activity. Was such an approach not quite risky and affecting freedom of expression? Further concerns were raised on possible limitations on people’s freedoms.
Another Expert referred to the judicial value of the hierarchy, and asked about compliance with individual communications sent by the Committee. The Committee did have a mandate to apply and interpret the Covenant, the Expert emphasized. That constituted the essence of the Committee’s work. International obligations ought to be complied with in good faith.
On unaccompanied minors, the Expert asked what Spain was doing to work together with countries of origin to prevent the travelling of children on their own. How was the exact age of children being established?
Migrants and the Roma were being stigmatized by the media, the Expert noted, and asked what the State was doing to stop such practices which could lead to persecution and crimes of hate?
A question was asked about “express flights home”, by which sometimes migrants were returned to their home countries within 72 hours of losing a job in Spain.
Was the Government planning to set up an early warning system to identify all migrants asking for asylum, the Expert inquired.
Another Expert noted that there was a large number of complaints on ethnic profiling related to searches submitted to the Ombudsman. What was being done to stop that practice? Were police forces trained to operate in an increasingly diverse society?
Members of the Council for Equal Treatment who were not civil servants were still carrying out their functions on a voluntary basis, which could compromise the Council’s sustainability, the Expert noted. When would the Council have its new President?
Victims of discrimination seemed to be often hampered in their access to courts, as such actions proved to be too costly and difficult to them. What had been done in order to make access to courts easier, which was also a way to combat discrimination?
An Expert asked about cases of the Constitutional Court making decisions in line with the Covenant.
Questions on historic cases, access to the archives, DNA sampling and excavating mass graves were raised again by an Expert.
Responses by the Delegation
Regarding the question on treaties ratified by Spain being part of the domestic legal order, the delegation explained that the Spanish legal system was dualist, and competencies needed to be drawn from the Constitution. Interpretation of treaties was in place in accordance with international treaties. Legal decisions made by the Committee were not necessarily executed as there needed to exist an organic law.
Information on the opening of the archives would be provided subsequently. With regard to the opening of the mass graves, a permit from local authorities needed to be granted. Subsidies requiring budgetary authorization could be granted for the protection of historic memory. Proceedings could not be reopened for crimes committed for political purposes. Investigating judges could not open criminal proceedings if those had elapsed through legislative acts. People could not be invited to bear witness or give statements because that would entail reopening of the proceedings, which could not be done if the criminal trial was not under way, the delegation explained.
Responding to the questions on demonstrations, those could be prohibited if there was a danger of public disorder. There was punishment for incitement to convening demonstrations which would result in violence.
A delegate stated that there was no prohibition of free legal aid to persons held in incommunicado detention. There were provisions that forensic doctors could see those held incommunicado twice every 24 hours, and could be accompanied by other doctors if need be. Detainees had been able to choose doctors in some cases.
Confidentiality was guaranteed in conversations between the lawyer and the client, which was now recognized in the Spanish legal system.
Amendments on free legal aid were currently before the Parliament, a delegate said. There were improvements in the right of free legal aid for foreigners. Efforts were made to avoid re-victimization. Special training was provided to lawyers dealing with free legal aid.
The pardon from the Ministry of Justice in the cases of torture had been independent and exceptional in nature.
The delegation said that migrant detention centres were managed by the Ministry of the Interior. The average rate of occupancy stood at 40 per cent; desegregated data was available for each of the centres. The average occupancy was 24 days and the maximum 70 days. In 2013, some 4,700 people had been expelled from those centres. Holding of a minor in a centre was subject to a favourable opinion of the Ministry of Justice. Detainees could make a complaint to the Ombudsman directly or through non-governmental organizations present there. All complaints were thoroughly investigated. Use of mobile phones by detainees in the centres was allowed.
On express flight homes, it was explained that those were not taking place within 72 hours of losing a job, and interim measures could take place.
A delegate explained that a new organic law provided for the respect of principles of proportionality and not to discriminate on the basis of sex, racial or religious features when it came to police searches. That way, profiling would be limited.
All of the agents on Spanish borders were trained in human rights, both internally and in various centres, throughout their careers. In the autonomous cities of Ceuta and Melilla, additional trainings were previsioned on emergency assistance to vulnerable people and international human rights protection. The delegation clarified that foreigners entering Ceuta and Melilla were subject to expulsions on an individual, case-by-case basis. Those procedures went hand in hand with other measures such as non-refoulement and free legal aid. The regime in place was currently included in the organic law on aliens. Spain was well aware of the increasing pressure when it came to asylum seekers; consequently, migrant offices in both autonomous cities were now open. The majority of people asking for asylum in the border areas were Syrians.
Security officers who committed crimes contained in the Criminal Code would have their licenses withdrawn, the delegation stated. Spanish legislation did not provide for automatic recording of questionings in police stations, but progress was being made in that area. All questionings of minors and persons with disabilities were recorded.
Sanction of solitary confinement was strictly controlled and monitored by judicial bodies and was not of an executive nature. Such inmates were visited by doctors as many as three times per day.
In 2013, some 6,000 demonstrations had taken place in Spain, and only in 20 cases had the riot equipment been used.
In relation to the repatriation of foreign minors, the delegation said that there had been fewer than 10 cases in 2013 and none in 2014. Such repatriations had been conducted with the best interest of the child in mind. No minors had been repatriated to Morocco. In less than 24 hours, it needed to be established whether someone should go through the adults or the minors system. With the consent of the affected individual, testing would then take place, including x-rays of their left hand or teeth. The Ombudsman had been advised of those issues.
On forced sterilizations, the delegation reiterated that the majority of sterilizations pertained to women. Consensual sterilization to any adult was lawful, whereas forced sterilization was an offence.
The delegation said that the Roma population was a very large group in Spanish society. In 2011, a comprehensive strategy to combat racism and xenophobia had been approved. Every year, a survey was carried out on the evolving nature of racism, so that strategies could be appropriately tailored. Overall results showed that the Spanish society was becoming more tolerant. Specialized agencies worked on hate crimes.
The protocol on unaccompanied foreign minors helped assess the role of each of the involved agencies in establishing the age, registering them and providing necessary services. Spain was trying to help improve socio-economic measures in the countries of origin so that minors did not have to leave, but could establish themselves in their home countries. There was a mobility agreement between Spain and Morocco. Minors could work from the age of 16.
The budget for assisting victims of hate crimes and discrimination had been sustained over the previous few years, a delegate informed. Discrimination in the private sector did not always come before the courts, but was dealt with through administrative channels.
Follow-up Questions
The Ombudsman had provided information that there were no diplomatic guarantees regarding express flights home, an Expert noted, asking for a response in writing.
Another Expert asked about the status of the amendments on the 2009 asylum law.
Concluding Remarks
FABIAN OMAR SALVIOLI, Chairperson of the Committee, praised the delegation for making an effort to respond to the vast array of questions. The dialogue had been very enriching, and the delegation had been well prepared. A number of issues, regarding torture, enforced disappearances, incommunicado detention, and public and private security, had been discussed, and concluding recommendations were likely to include those and other matters. Perpetrators of torture ought to be punished. The Chairperson did not see why there would be a problem establishing State responsibility in enforced disappearances; the Amnesty Law should not be an obstacle to it. The Committee was the only body to interpret the Covenant, the Chairperson stressed. Which other body could do it if not the Committee?
ANA MARIA MENENDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, said that the delegation had endeavoured to answer all of the questions, and subsequent clarifications and full answers would be provided in writing within 48 hours. Civil society was thanked for being present. It was a pity that the dialogue had not been webcast; such interactions should be made public whenever possible. It was an ongoing dialogue, and the State party would accept the simplified reporting procedure for the following cycle.
Ana Maria Menendez, Permanent Representative of Spain to the United Nations Office at Geneva, presenting the report, said that Spain’s relationship with the Committee had been continuous over the years. The Spanish Penal Code rejected all kinds of hate crimes against various communities and minorities. The Prosecutor’s Office for Equality and against Discrimination was fully operational. Companies were required to move towards balanced participation between men and women. Trafficking in human beings had been listed as an autonomous crime in 2010. The revised text on being held incommunicado reinforced the guarantees for the detainees, and legal justification and urgency were necessary for holding anyone incommunicado. The Victims of Crimes Act, adopted in 2015, provided victims not only with reparations for injuries caused, but also with psycho-social help.
In the dialogue that followed, Committee Experts wanted to know more about efforts to combat trafficking in human beings and measures taken to prevent forced labour. Treatment of migrants and asylum seekers, including their expulsion and conditions in migrant holding centres, in the autonomous cities of Ceuta and Melilla, was thoroughly discussed. Experts also raised issues of abortion, provisions of contraception, gender pay gap, and domestic violence. Subjects of incommunicado detention and rules for extradition were also addressed at length. Other issues raised by the Experts included forced sterilization of mentally disabled persons, operations of private security companies, responsibilities and effectiveness of the Ombudsman, dealing with historic cases, access to the archives, DNA sampling and excavating mass graves from the period of the dictatorship.
Committee Chairperson Fabian Omar Salvioli, in his concluding remarks, said that the dialogue had been very enriching, and the delegation had been well prepared. A number of issues, regarding torture, enforced disappearances, incommunicado detention, and public and private security, had been discussed, and concluding recommendations were likely to include those and other matters. The Chairperson did not see why there would be a problem establishing State responsibility in enforced disappearances; the Amnesty Law should not be an obstacle to it. The Committee was the only body to interpret the Covenant, the Chairperson stressed.
Ms. Menendez, in closing remarks, said that the delegation had endeavoured to answer all of the questions, and subsequent clarifications and full answers would be provided in writing within 48 hours. Civil society was thanked for being present. It was a pity that the dialogue had not been webcast; such interactions should be made public whenever possible. It was an ongoing dialogue, and the State party would accept the simplified reporting procedure for the following cycle.
The delegation of Spain included representatives of the Ministry of Foreign Affairs and Cooperation, State Prosecutor’s Office, Ministry of Justice, Ministry of the Interior, Ministry of Education, Culture and Sport, Ministry of Employment and Social Security, Ministry of Health, Social Services and Equality, and the Permanent Mission of Spain to the United Nations Office at Geneva.
The Committee will next meet in public today at 3 p.m., when it will consider the sixth periodic report of Canada (CCPR/C/CAN/6).
Report
The sixth periodic report of Spain is available here: CCPR/C/ESP/6.
Presentation of the Report
ANA MARIA MENENDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, presenting the report, said that Spain’s relationship with the Committee had been continuous over the years. Regarding the fight against racism and xenophobia, the Penal Code rejected all kinds of hate crimes against various communities and minorities. More than 20,000 civil servants, including members of the security forces, had been trained to identify and register racist incidents. The Prosecutor’s Office for Equality and against Discrimination was fully operational.
Companies were required to move towards balanced participation between men and women. On corporate boards, women should be represented by at least 30 per cent in 2020. Progress had also been made in the audio-visual taping of hearings in police stations. In 2014, a domestic regime had been approved for migrant hosting centres. The regime of guarantees and legal controls had been perfected, and the Ministry of the Interior had signed an agreement with the Spanish Red Cross on providing assistance in centres for holding foreigners.
Fighting violence against women was one of the priorities of the Government, and a national strategy for 2013-2016 was being implemented. Free legal counsel was provided to the victims of gender-based violence. Any foreign citizen, regardless of their status in Spain, could submit a complaint on cases of gender-based violence without hindering their status. Spain had provided specific statistics on the number of complaints received and sentences handed out between 2010 and 2014, as requested by the Committee. Trafficking in human beings had been listed as an autonomous crime in 2010. A comprehensive plan had been put in place in 2009, and would soon be replaced by an updated plan. Offices for international protection in the autonomous cities of Ceuta and Melilla had opened in September 2014, and constituted a significant step towards facilitating access to international protection.
Regarding persons deprived of freedom, an organic law was in procedure. The revised text on being held incommunicado reinforced the guarantees for the detainees. Legal justification and urgency were necessary for holding anyone incommunicado. Judges and security forces were already adjusting their behaviour to the exceptional context of holding anyone incommunicado. Only eight per cent of detainees being held for the crimes of terrorism were held incommunicado in 2015. They were provided with medical assistance on a daily basis. With regard to the protection of unaccompanied minors on Spanish territory, a framework protocol had been signed in 2014, which was based on the principle of the primary interests of the child. Foreign minors had the right to education, health and social services, the same way as Spanish minors.
Ms. Menendez said that there was a draft law in the Parliament to strengthen procedural guarantees to free trial. Those changes were in compliance with the latest recommendations by the Committee. The victims of crimes act, adopted in 2015, provided victims not only reparations for injuries caused, but also psycho-social help.
Questions by Experts
An Expert invited Spain to consider accepting the simplified reporting procedures.
He asked about a protocol on accepting individual communications. What was the position of Spain on the principle of good faith regarding observations and recommendations emanating from the Committee?
Turning to the issue of human trafficking, the Expert said that Spain had some of the best standards on protection and prevention in that regard. Nonetheless, Spain was still a transit and destination country. Could the delegation provide statistics regarding reparation to victims? More information was sought on domestic trafficking. There was a gap in identifying victims of trafficking. Was training of judges taking place? What was being done to prevent re-victimization?
Another Expert raised the issue of anti-discrimination provisions and noted the absence of a comprehensive act on that matter. Was there any plan to adopt such legislation, on the basis of the 2011 draft? More information was sought about the status of the council against discrimination. Were there plans to transform it into a fully independent body?
The Ombudsman continued to play an important role, but relatively few of the cases before him expressly concerned discrimination. What concrete steps were being taken to promote the Ombudsman’s role in combatting discrimination?
What were the most concrete results in the achievement of equal opportunities for men and women, the Expert inquired. How many multiple discrimination cases had been registered, in which being female was one of the elements?
The Committee was encouraged that there had been a decrease in the cases of domestic violence. Could information be provided on female minor victims of domestic violence, and among the Roma communities, both domicile and recent arrivals?
On access to abortion, an Expert asked the delegation to comment on various restrictions stemming from the 2012 law. Did girls between 16 and 18 need to receive the explicit authorization of their parents? Statistics and relevant examples of case law were sought. How many abortions had been provided in public health centres over the previous few years?
Questions were also asked about national health services providing contraception.
An increasing number of persons with disabilities was reportedly denied their legal capacity, such as the right to vote. Could some statistics be provided? The issue of forced institutionalization, including sterilization without consent, was also raised.
Turning to the issue of torture, another Expert asked about allegations that medical services had not been provided to persons held in detention. An update was sought for two specific cases. The Expert wanted to know why three officials found guilty of torture had been pardoned; that could establish a feeling of impunity.
The Private Security Act, which had entered into force in 2014, regulated activities of the private security sector. Would those entities have the right to deprive individuals of freedom and survey public spaces? Did those private security companies fall under the remit of official security agencies?
More information was requested about reparations to the victims of human rights violations committed during the dictatorship in Spain. Enforced disappearances were an ongoing crime. Too much burden seemed to be placed on the families of victims. What were the legal reasons for rejecting cooperation with Argentinian officials in that regard? What was the way forward?
An Expert said that the Committee recognized that Spain was under increasing pressure from the influx of migrants and asylum seekers, but the State party should do all it could to protect their human rights. Were those in migrant-holding centres called by their names? Three types of ill-treatment – by staff, other detainees and violence in the two autonomous cities – were raised and clarification was sought. What inspections of migrant-holding facilities had the police forces conducted? Was information in different languages available to migrants? What oversight and remedies were available for allegations of mistreatment in the autonomous cities?
Clarifications were asked on the process of declassification of the archives of the Franco era. How about taking of DNA samples for the purpose of identifying victims of that period?
Could more information be given on the case of Ali Arras in 2011, who had been extradited by Spain to Morocco, only to suffer serious torture there? Why had Spain not complied with the recommendation of the Committee in that regard?
Responses by the Delegation
Regarding the jurisprudence of the Constitutional Court from 2005 which had stated that the Committees did not form part of the domestic legal structure, the delegation said that domestic rulings could not be overruled by an international body. It was only through special procedures, such as was the case with the European Union, that international resolutions had direct applicability. Decisions by the Committees were not directly legally binding in Spain; those were not supranational bodies. In Spain, the last word lay with the Constitutional Court.
In the Ali Arras case, where the Committee had found a violation, Spain had followed domestic provisions and the domestic high court had not found evidence that there was suspicion of Mr. Arras being tortured if he was extradited.
The 1977 Amnesty Act was a law issued by a democratically constituted Parliament, the delegation emphasized. Extraditions requested by Argentina had been refused because of the agreement between the two countries on extradition, which read that no extradition should take place if criminal responsibility had not been established. The Committee was asking Spain to retroactively apply laws to crimes whose statute of limitations had already elapsed, which could not be done.
The law on the status of victims provided for comprehensive compensation to victims, financial but also through criminal proceedings and psycho-social support. Victims enjoyed various rights, including guarantee of safety and protection from reprisals. Special provisions were in place for minors, persons with disabilities and others who needed additional protection.
The delegation stated that persons with disabilities were provided with proper protection. The Criminal Code provided safeguards when it came to forced sterilization. Such acts would need to be approved by a judicial body, with the consent of the guardians. Those with mental disabilities who could understand the concepts of parenthood and did not want to be sterilized could not be sterilized against their will.
On granting pardons, the delegation said that the few cases mentioned by the Committee had been exceptional. The criteria were now stricter, and the Parliament needed to be briefed on the matter twice a year.
The delegation said that forensic doctors visited incommunicado detainees twice within every 24 hours.
In 2011, the comprehensive draft project law on anti-discrimination had been abandoned, but there were anti-discriminatory provisions in numerous other laws. The Council for Equal Treatment continued to be part of the Ministry of Health. It worked closely with the Institute for Women and Equal Opportunity. At the moment, the Council did not have a president, but its powers continued to be complied with, an example being a recent recommendation regarding campaigning for local elections.
Responding to the questions on gender equality, it was explained that legislation provided for a series of more than 200 measures, the large majority of which had been implemented. The measures needed to be looked at in order to establish which had been the most successful. One success came from an initiative to support women entrepreneurs. In Spain, data was desegregated by sex, which helped identify the existing gaps.
On abortion, the delegation said that there was a proposal of an organic law going through Parliament now. One of the articles provided for consent for women who were between 16 and 18. The text had been drafted by a parliamentary group and had not been submitted by the Government. The rationale was the protection of the interests of the minor. Any health centre across Spain was obliged to follow the central laws. Regarding statistics, in 2013, the total number of abortions in Spain had dropped compared to previous years. Women below the age of 18 were about 12 per cent of all women going for abortion. Access to contraception was provided.
Turning to the issue of trafficking of women and children, the delegation informed that there were grants for projects to support victims of trafficking. In 2014, more than 76,000 women at risk had been contacted. There were 40 centres in Spain to provide support and care to women victims of trafficking. Prevention methods were provided for in a comprehensive programme to combat trafficking of women and children. The Ministry of the Interior had carried out training for 89 per cent of those working in the assistance network. The Ministry of Justice was also providing education on trafficking and gender violence and other Ministries were involved in their respective areas.
Spain was working on identifying and detecting women who were suffering from domestic violence. Awareness raising through mass and social media was conducted. More than 92 per cent of the population found domestic violence unacceptable, while the percentage among the young was still higher. Statistics showed that in 2014 150 cases had been involved in legal proceedings, when both the perpetrator and the victim had been minors.
Regarding the low level of complaints on discrimination against Roma, a delegate stated that indeed very few cases had been recorded and few complaints filed by the Roma. Perhaps a reason was the lack of trust towards the authorities. Information was provided through awareness-raising campaigns, and women were encouraged to complain when needed and validate their rights.
On the Second Human Rights Plan, the delegation informed that the First Plan had been assessed and needs identified to draft a new one. The draft diagnostic had been submitted for consultations to various Ministries, which had proposed measures to be included in the new plan. The process was indeed taking some time, but that was because consultations were detailed.
On equality between men and women in the labour market, it was explained that companies were assessed on various accounts, including promoting the position of women within their structures. Out of all companies inspected, 0.3 per cent of workers had been found to be experiencing some discrimination in terms of wages.
A delegate said that incommunicado detention in Spain was limited to very specific cases, and only eight per cent of those confined for terrorism were held incommunicado. Regarding the complaint from Argentinian doctors, the delegation did not have sufficient information on that, but could look into it and respond in writing within 48 hours.
In police forces, there was vigorous monitoring of internal affairs with the view of punishing any alleged cases of torture. Members of the police forces and law enforcement agencies were provided with all the measures necessary to conduct their investigations.
Private security was subordinate to the official security bodies and forces of the State. They did not operate in public spaces, and they always cooperated closely with official forces. When unlawful conduct was committed, their license was withdrawn.
Migrant holding centres had two functions: to deal with national security and to look after the security of persons interned there. Various services, including legal and social, were provided in the centres, by organizations outside of Spanish police forces. There were provisions for calling persons interned by their names and not numbers assigned to them. Regarding cases of ill-treatment in those centres, the delegation said that all complaints were not only investigated by the management, but impartial judicial investigations also took place, with medical assessment being regularly conducted.
Regarding the two autonomous cities of Ceuta and Melilla, Spanish security forces carried out border-surveillance activities, the delegation explained, in compliance with national and European Union norms. Those forces operated in difficult circumstances, while paying attention to the proportionate application of force.
On the repatriation of victims of trafficking, the delegation said that if the victim of trafficking decided to be voluntarily returned home, that was provided by the Government. The relevant body in the country of destination was subsequently informed. Recently, a bilateral agreement on that issue with Romania had been signed. The delegation said that the lowest sentence that could be handed down in cases of forced labour was eight years. In September, an annual report for 2014-2015 would be published, and the Committee would be provided with a copy.
Questions by the Experts
In a follow-up question, an Expert asked whether there were protocols in place for the use of force in the autonomous cities of Ceuta and Melilla. There were reports that migrants had been hit by batons, including a 12-year old. What training was provided to the border security and what oversight mechanisms were available? Had any investigations taken place?
Could the delegation provide more details on procedures in place in Ceuta and Melilla for returning and expelling migrants? Were these any different from those of other border posts? When would the asylum post in Ceuta be operational? What measures were being taken to prevent harassment of migrants by Moroccan border guards? Could specialized non-governmental organizations access migrant holding centres in order to independently assess migrant needs?
On incommunicado detention, the Expert recalled that Spain had been urged to end such a practice. The fact that incommunicado detention was currently applied to only eight per cent of all held on terrorism charges was appreciated. The Committee was concerned that the regime still continued to deny some fundamental rights. Were any changes to the current regime being contemplated at the moment? Was the burden of proof showing that incommunicado detention was truly necessary? In how many instances and for what kind of cases had incommunicado detention been applied since the last report? Was independent medical assessment provided for individuals who claimed to have been victims of torture?
What was the frequency of solitary confinement in the Spanish penitentiary system? The case of a Basque lawyer, who had been allegedly held in solitary confinement in pre-trial for over the year, was raised.
Referring to legal fees, the delegation was asked to elaborate on limitations with respect to non-nationals. What changes were contemplated with regard to free legal aid? Would undocumented migrants from outside of the European Union have access to free legal aid?
Another Expert observed that the rules on forced sterilizations still ought to be defined, and the Committee was looking forward to receiving details on that. Could there be possible conflict of interest between the guardian and the person affected?
Which Ministry controlled migrant holding centres, the Expert inquired. What were the occupancy rates, and were there cases of overcrowding? Were there enough personnel provided? How many people had been detained in those centres in 2013 and 2014, and how many among those were unaccompanied minors? Information was sought about several deaths that had occurred in the centres.
Regarding social protest, there were elements indicating that there could be some legal limitations to the freedom of assembly. There seemed to be limits in place for holding spontaneous demonstrations.
On excessive use of force by the police, the Expert asked for further information on specific instances, including the demonstration on 25 September 2012. Criminal proceedings in some cases had been dismissed, for which clarifications were sought. Did police badges include visible names of police officers in all circumstances?
More clarification was sought on the pardons in cases of torture.
With reference to the private security act, an Expert was hoping to receive more information in writing on their power of detention and other powers. The same was the case regarding the right to justice and the hopes of reconciliation.
The definition of terrorism was thought to be somewhat vague, an Expert noted. The notion of terrorist activity seemed to include people who were promoting its activity. Was such an approach not quite risky and affecting freedom of expression? Further concerns were raised on possible limitations on people’s freedoms.
Another Expert referred to the judicial value of the hierarchy, and asked about compliance with individual communications sent by the Committee. The Committee did have a mandate to apply and interpret the Covenant, the Expert emphasized. That constituted the essence of the Committee’s work. International obligations ought to be complied with in good faith.
On unaccompanied minors, the Expert asked what Spain was doing to work together with countries of origin to prevent the travelling of children on their own. How was the exact age of children being established?
Migrants and the Roma were being stigmatized by the media, the Expert noted, and asked what the State was doing to stop such practices which could lead to persecution and crimes of hate?
A question was asked about “express flights home”, by which sometimes migrants were returned to their home countries within 72 hours of losing a job in Spain.
Was the Government planning to set up an early warning system to identify all migrants asking for asylum, the Expert inquired.
Another Expert noted that there was a large number of complaints on ethnic profiling related to searches submitted to the Ombudsman. What was being done to stop that practice? Were police forces trained to operate in an increasingly diverse society?
Members of the Council for Equal Treatment who were not civil servants were still carrying out their functions on a voluntary basis, which could compromise the Council’s sustainability, the Expert noted. When would the Council have its new President?
Victims of discrimination seemed to be often hampered in their access to courts, as such actions proved to be too costly and difficult to them. What had been done in order to make access to courts easier, which was also a way to combat discrimination?
An Expert asked about cases of the Constitutional Court making decisions in line with the Covenant.
Questions on historic cases, access to the archives, DNA sampling and excavating mass graves were raised again by an Expert.
Responses by the Delegation
Regarding the question on treaties ratified by Spain being part of the domestic legal order, the delegation explained that the Spanish legal system was dualist, and competencies needed to be drawn from the Constitution. Interpretation of treaties was in place in accordance with international treaties. Legal decisions made by the Committee were not necessarily executed as there needed to exist an organic law.
Information on the opening of the archives would be provided subsequently. With regard to the opening of the mass graves, a permit from local authorities needed to be granted. Subsidies requiring budgetary authorization could be granted for the protection of historic memory. Proceedings could not be reopened for crimes committed for political purposes. Investigating judges could not open criminal proceedings if those had elapsed through legislative acts. People could not be invited to bear witness or give statements because that would entail reopening of the proceedings, which could not be done if the criminal trial was not under way, the delegation explained.
Responding to the questions on demonstrations, those could be prohibited if there was a danger of public disorder. There was punishment for incitement to convening demonstrations which would result in violence.
A delegate stated that there was no prohibition of free legal aid to persons held in incommunicado detention. There were provisions that forensic doctors could see those held incommunicado twice every 24 hours, and could be accompanied by other doctors if need be. Detainees had been able to choose doctors in some cases.
Confidentiality was guaranteed in conversations between the lawyer and the client, which was now recognized in the Spanish legal system.
Amendments on free legal aid were currently before the Parliament, a delegate said. There were improvements in the right of free legal aid for foreigners. Efforts were made to avoid re-victimization. Special training was provided to lawyers dealing with free legal aid.
The pardon from the Ministry of Justice in the cases of torture had been independent and exceptional in nature.
The delegation said that migrant detention centres were managed by the Ministry of the Interior. The average rate of occupancy stood at 40 per cent; desegregated data was available for each of the centres. The average occupancy was 24 days and the maximum 70 days. In 2013, some 4,700 people had been expelled from those centres. Holding of a minor in a centre was subject to a favourable opinion of the Ministry of Justice. Detainees could make a complaint to the Ombudsman directly or through non-governmental organizations present there. All complaints were thoroughly investigated. Use of mobile phones by detainees in the centres was allowed.
On express flight homes, it was explained that those were not taking place within 72 hours of losing a job, and interim measures could take place.
A delegate explained that a new organic law provided for the respect of principles of proportionality and not to discriminate on the basis of sex, racial or religious features when it came to police searches. That way, profiling would be limited.
All of the agents on Spanish borders were trained in human rights, both internally and in various centres, throughout their careers. In the autonomous cities of Ceuta and Melilla, additional trainings were previsioned on emergency assistance to vulnerable people and international human rights protection. The delegation clarified that foreigners entering Ceuta and Melilla were subject to expulsions on an individual, case-by-case basis. Those procedures went hand in hand with other measures such as non-refoulement and free legal aid. The regime in place was currently included in the organic law on aliens. Spain was well aware of the increasing pressure when it came to asylum seekers; consequently, migrant offices in both autonomous cities were now open. The majority of people asking for asylum in the border areas were Syrians.
Security officers who committed crimes contained in the Criminal Code would have their licenses withdrawn, the delegation stated. Spanish legislation did not provide for automatic recording of questionings in police stations, but progress was being made in that area. All questionings of minors and persons with disabilities were recorded.
Sanction of solitary confinement was strictly controlled and monitored by judicial bodies and was not of an executive nature. Such inmates were visited by doctors as many as three times per day.
In 2013, some 6,000 demonstrations had taken place in Spain, and only in 20 cases had the riot equipment been used.
In relation to the repatriation of foreign minors, the delegation said that there had been fewer than 10 cases in 2013 and none in 2014. Such repatriations had been conducted with the best interest of the child in mind. No minors had been repatriated to Morocco. In less than 24 hours, it needed to be established whether someone should go through the adults or the minors system. With the consent of the affected individual, testing would then take place, including x-rays of their left hand or teeth. The Ombudsman had been advised of those issues.
On forced sterilizations, the delegation reiterated that the majority of sterilizations pertained to women. Consensual sterilization to any adult was lawful, whereas forced sterilization was an offence.
The delegation said that the Roma population was a very large group in Spanish society. In 2011, a comprehensive strategy to combat racism and xenophobia had been approved. Every year, a survey was carried out on the evolving nature of racism, so that strategies could be appropriately tailored. Overall results showed that the Spanish society was becoming more tolerant. Specialized agencies worked on hate crimes.
The protocol on unaccompanied foreign minors helped assess the role of each of the involved agencies in establishing the age, registering them and providing necessary services. Spain was trying to help improve socio-economic measures in the countries of origin so that minors did not have to leave, but could establish themselves in their home countries. There was a mobility agreement between Spain and Morocco. Minors could work from the age of 16.
The budget for assisting victims of hate crimes and discrimination had been sustained over the previous few years, a delegate informed. Discrimination in the private sector did not always come before the courts, but was dealt with through administrative channels.
Follow-up Questions
The Ombudsman had provided information that there were no diplomatic guarantees regarding express flights home, an Expert noted, asking for a response in writing.
Another Expert asked about the status of the amendments on the 2009 asylum law.
Concluding Remarks
FABIAN OMAR SALVIOLI, Chairperson of the Committee, praised the delegation for making an effort to respond to the vast array of questions. The dialogue had been very enriching, and the delegation had been well prepared. A number of issues, regarding torture, enforced disappearances, incommunicado detention, and public and private security, had been discussed, and concluding recommendations were likely to include those and other matters. Perpetrators of torture ought to be punished. The Chairperson did not see why there would be a problem establishing State responsibility in enforced disappearances; the Amnesty Law should not be an obstacle to it. The Committee was the only body to interpret the Covenant, the Chairperson stressed. Which other body could do it if not the Committee?
ANA MARIA MENENDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, said that the delegation had endeavoured to answer all of the questions, and subsequent clarifications and full answers would be provided in writing within 48 hours. Civil society was thanked for being present. It was a pity that the dialogue had not been webcast; such interactions should be made public whenever possible. It was an ongoing dialogue, and the State party would accept the simplified reporting procedure for the following cycle.
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