COMMITTEE EXAMINES REPORTS OF SPAIN ON OPTIONAL PROTOCOLS TO CONVENTION ON RIGHTS OF CHILD
The Committee on the Rights of the Child today reviewed the initial reports of Spain on how that country is implementing the provisions of the two Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.
In opening remarks to the Committee, Amparo Marzal Martínez, Director-General of Families and Childhood within the Ministry of Labour and Social Affairs, said Spain had been the first European country to ratify the Optional Protocols to the Convention on the Rights of the Child, and it was committed to combating with all the force of the law the human rights violations committed against children with the assistance of international instruments that could be appealed to in that context. With regard to the Optional Protocol on the involvement of children in armed conflict, Spain was among the countries that had considered the Convention on the Rights of the Child provided insufficient protection with regard to the involvement of children in armed conflict, and had given its active support to higher requisites for the enlistment of children under age 18. In follow-up to its commitments under the Optional Protocol on the sale of children, child prostitution and child pornography, Spain had already elaborated its second Plan of Action against the Sexual Exploitation of Children, covering the period 2006 to 2009.
In preliminary concluding observations, Committee Expert Lothar Krappmann, Rapporteur for the report of Spain on the Optional Protocol on children in armed conflict, said the Committee had observed Spain's commitment with regard to the Optional Protocol. There was no doubt that Spain was very strict with respect to the age limit of 18 years for involvement of children in armed conflict. Much information had also been provided on topics raised by Experts, for example on the treatment of children from abroad entering Spain, in particular former child soldiers. However, while some of the answers had been satisfactory, there were lingering concerns, for example with regard to the indirect way of criminalizing child recruitment.
In additional preliminary observations, Committee Expert Luigi Citarella, Rapporteur for the report of Spain on the Optional Protocol on the sale of children, child prostitution and child pornography, thanked the delegation but wished to raise a number of concerns. First there was a problem of criminalization of activities and offences under the protocol. Mention had been made of a new draft law, and he wondered if that might not be the opportunity to bring Spanish legislation into line with its obligations under the Protocol. Second, was the problem of collecting and analysing statistical data. The Committee was not able to accurately judge national implementation without it. Finally, there was the problem of victims of offences outlined by the Protocol, where more training was needed for professionals working with victims.
The Committee will release its formal, written concluding observations and recommendations on the reports of Spain towards the end of its three-week session, which will conclude on 5 October.
Also representing the delegation of Spain was Juan Antonio March, the Permanent Representative of Spain to the United Nations Office at Geneva and other members of the Permanent Mission, as well as representatives of the Ministry of Defence; the Ministry of Labour and Social Affairs; the Ministry of the Interior; the Ministry of Health; and the Ministry for Foreign Affairs and Cooperation.
As one of the 193 States parties to the Convention, Spain is obliged to present periodic reports to the Committee on its efforts to comply with the provisions of the treaty. The delegation was on hand to present the report and to answer questions raised by Committee Experts.
When the Committee reconvenes at 10 a.m. on Tuesday, 2 October, it will take up the initial report of Syria under the Optional Protocol on the involvement of children in armed conflict (CRC/C/OPAC/SYR/1).
Reports of Spain
The initial report of Spain under the Optional Protocol to the Convention on the Rights of the Child on children and armed conflict (CRC/C/OPAC/ESP/1) says the minimum age of entry into the Spanish armed forces is 18 years. As stipulated in the preamble to the Armed Forces Personnel (Regulations) Act of 1999, compulsory military service is being abolished and a new system introduced in which all military personnel will be professional members of the armed forces. This legal instrument also states that the minimum age of admission to military training institutions is 18 years. At the international level, Spain is party to the Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 1977. It is party to the Convention on the Rights of the Child and has ratified its two Optional Protocols. It has also ratified the International Labour Organization Convention No. 182 concerning the Elimination of the Worst Forms of Child Labour. Within the United Nations, Spain actively participated in drawing up Security Council resolution 1539, adopted in April 2004, giving new impetus to the campaign conducted within the Organization against the use of children in armed conflict.
The initial report of Spain under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC/C/OPSC/ESP/1) notes that the first Action Plan against Commercial Sexual Exploitation of Children was adopted by Children’s and Adolescents’ Watch in December 2001. Action under the Plan lies within the spheres of competence both of the State and of the Autonomous Communities. Participation by non-governmental organizations is also integral to execution of the Plan. To combat sexual tourism involving minors, the Plan provides for a variety of activities to be carried out with the participation of the relevant professional sectors – tourism and leisure, and of the media, jurists, the security forces and the armed forces. It also provides for action to promote the safe use of the Internet. An assessment of the Plan for 2002 and 2003, submitted in February 2005, concluded that the Plan had made an important contribution to the development of measures to combat sexual exploitation of children; the establishment of new programmes to respond specifically to the Plan’s objectives; the maintenance and support of existing programmes to combat the sexual exploitation of children; coordination between child-protection bodies and professionals; responses to international commitments concerning the sexual exploitation of children; and changes to national legislation. In December 2005, Children’s and Adolescents’ Watch adopted the second Action Plan against the Sexual Exploitation of Children for the period 2006-2009. The Plan not only includes inputs from a variety of child-protection bodies and professionals, but was also drawn up with the participation of the voluntary sector, something that was considered to be of the utmost importance.
Presentation of Reports
AMPARO MARZAL MARTÍNEZ, Director-General of Families and Childhood within the Ministry of Labour and Social Affairs, presenting the reports of Spain under the two Optional Protocols to the Convention on the Rights of the Child on children and armed conflict, and on the sale of children, child prostitution and child pornography, said that the advances made by Spain in those two areas had been set out in the reports, which had been updated for this occasion, but that had also been done for other areas of United Nations activities, such as for the United Nations Study on Violence against Children, to which Spain had contributed. Spain had also submitted the documentation requested by the Special Rapporteur on the sale of children, child prostitution and child pornography, for the preparation of a report that would be submitted to the Human Rights Council on child victims of commercial sexual exploitation.
Spain took great interest in both of these subjects, Ms. Marzal Martínez stressed. Spain had been the first European country to ratify the two Optional Protocols, and was committed to combating with all the force of the law the human rights violations committed against children with the assistance of international instruments that could be appealed to in that context. However, written obligations were not enough. Spain therefore welcomed its engagement to report to the Committee on the measures it had taken to facilitate the enjoyment by children of their rights.
Ms. Marzal Martínez noted that Spain was among the countries that had considered the Convention on the Rights of the Child provided insufficient protection with regard to the involvement of children in armed conflict, and had given its active support to higher requisites for the enlistment of children under age 18.
Turning to questions concerning the Optional Protocol on the sale of children, child prostitution and child pornography, Ms. Marzal Martínez said it was first important to note that, in Spain, it was the public child protection authority in each Autonomous Community that was responsible for handling any cases in which a child's rights had been violated. The competent expert bodies in these areas of each Autonomous Community would assess the case of each child and their family situation and decide on what measures to take. If it was necessary for the public body to assume guardianship of the child, it was their responsibility to provide all necessary physical or psychosocial assistance for the recovery and rehabilitation of the minor. Nevertheless, it was the Ministry of Labour which assumed permanent coordination of all the issues related to childhood and the family taking place in the Autonomous Communities by means of the Sectoral Conference for Social Affairs; the Commissions of Director Generals for Childhood; and Children’s and Adolescents’ Watch.
The Ministry of Labour and Social Affairs, charged with follow-up to the Committee's recommendations, had elaborated the first Strategic Plan on Children and Adolescents (2006-2009), which had been adopted by Children's and Adolescents' Watch, a collegiate body comprising all those who were involved in the protection and promotion of children’s and adolescents’ rights from all the public administrations and related non-governmental organizations. A component of that Strategic Plan were concrete measures and policies directed towards especially vulnerable groups of children, those at risk of exclusion or victims of abuse or exploitation, Ms. Marzal Martínez added.
In that connection, as noted in the report, Spain had already elaborated its second Plan of Action against the Sexual Exploitation of Children, covering the period 2006 to 2009, Ms. Marzal Martínez continued. That Action Plan had been adopted by Children’s and Adolescents’ Watch, which was also tasked with monitoring and follow-up of the plan. Following the completion of the first Action Plan, an evaluation had been undertaken by an expert team from the University of Valencia, and those conclusions had been of great value in elaborating the second plan.
The process of implementation and follow-up to the second Plan of Action against the Sexual Exploitation of Children was further strengthened and supported by the Strategic National Plan on Childhood and Adolescence, previously mentioned, Ms. Marzal Martínez said. Both for the Strategic Plan and for the Action Plan against Sexual Exploitation, each measure was provided with a body responsible for its implementation. In the case of the Action Plan, its evaluation and follow-up was ensured by Children's and Adolescents' Watch.
Discussion on the Optional Protocol on the Involvement of Children in Armed Conflict
LOTHAR KRAPPMANN, the Committee Expert serving as Rapporteur for the report of Spain on the involvement of children in armed conflict, took note of the fact that, since the suspension of compulsory military service in Spain, in 1999, the minimum age for voluntary recruitment into the armed forces was 18 years old, and that, according to the report, the age limit of 18 also applied to foreign nationals wishing to join the Spanish Army, in addition to having to have reached majority in their countries of origin. That age limit was also maintained with regard to volunteer reservists and compulsory reservists, who could be enlisted in situations of crisis and serious risk to national security.
In that connection, Mr. Krappmann observed that military schools had not been mentioned in the report. Could the delegation please confirm that that omission in effect meant that there were no military schools at the secondary level in Spain?
Pursuant to the statement in the report that the involvement of minors in hostilities was prohibited in Spain, Mr. Krappmann pointed out that it might be prohibited under Spanish legislation, but that did not mean that it was criminalized. Was Spain considering the possibility of criminalizing the recruitment of persons under 18 into the armed forces of the State or other armed groups? The Committee recommended that practice in order to strengthen those provisions and so as to ensure extraterritorial jurisdiction for such crimes.
In particular regarding the prohibition and prevention of recruitment of minors in armed groups, Mr. Krappman highlighted that the report said that that provision of the Optional Protocol (article 4), was not applicable in Spain. It was known that terrorists’ cells in possession of weapons and explosives did not refrain from using children in their attempts to put the Spanish Government under pressure. No doubt those acts were criminalized in Spain and the involvement of children was an aggravating factor. The criminal misuse of children was of deep concern, and he could not but wonder why Spain had chosen not to mention those groups.
By its geography, those who had experienced armed conflicts spilled over into Spain in the form of children who had been traumatized by armed conflicts and who were seeking asylum. Was there data available on the number of children entering Spain that had been affected by active personal involvement in armed conflicts or who had otherwise been affected by war? Was impending recruitment into or desertion from military forces a recognized reason for attributing refugee status? Was the staff that investigated the cases of child asylum-seekers trained to be sensitive to the concerns of such children?
Finally, Mr. Lothar asked for more information about Spain's programme for peace education in the schools.
Other Experts raised questions on a number of subjects, including whether there were any provisions in Spanish law to prohibit the export of arms to countries that employed child soldiers; more details on the treatment received by unaccompanied minors arriving in Spain, in particular measures to determine whether they had been involved in or affected by armed conflict; and what were the linkages between policies and practices of the national-level and the local-level Ombudsman's institution.
Response by Delegation
Responding, the delegation said that for a minor to be enlisted in the Armed Forces could only occur through the gravest error in the processing by the competent authorities. The Army was now entirely professional. At the training centre, for all areas, the minimum age for enrolment was 18 years. As of 2002, it was possible for foreigners to become members of the army in certain restricted circumstances, so as to permit integration of immigrants into Spanish society. A maximum of 2 per cent foreigners could enlist and there were double protections with regard to age: foreigners had to be at least 18 years of age and, in addition, had to have achieved majority in their own country. In addition, such foreign recruits had to receive the agreement of their country of nationality for participation in the Spanish army.
By a law of 1999, the polytechnic institutes in which military-related training had been carried out had been abolished. As for military training, all personnel of every rank and grade received peacekeeping training. All staff also received a manual on the rights and laws of armed conflict, which had a specific section on the situation of children in armed conflict.
Spain was a party to the European Code of Arms, which prohibited the export of arms to countries that employed child soldiers. In addition, prior to that, in 1992 Spain had enacted a law looking at the smuggling of all "bellicose" material, which included arms, but had a wider scope, including many related items, the delegation said.
The recruitment of children in armed forces or other armed groups was criminalized in Spain's Criminal Code, the delegation said. That was made possible via the provision in the Criminal Code regarding the violation of an international treaty protecting norms for women and children. In the present case, such a crime would carry a prison sentence of from three to seven years.
Responding to concerns related to extraterritorial jurisdiction, the delegation insisted that Spain did have universal jurisdiction for the crimes defined in the Protocol. It was possible to prosecute crimes defined under Spanish law, regardless of where the crime took place or the nationality of the offender. The Spanish court had also specifically ruled that such universal jurisdiction extended to crimes defined in international instruments to which Spain was a party, rather than specific domestic legislation. That had been the case with torture, for existence.
As for armed groups, the delegation noted that there was no armed conflict ongoing in Spain. There were instances of terrorist activity, which was confined to a specific area of the country. Spain had laws regulating the recruitment of minors in its own armed forces; the problem here was that the groups they were talking about were operating outside of the law. Spain did have extensive legislation to address the activities of those groups, including laws against armed groups whose purpose was to undermine the public order, and those laws set out higher penalties for acts carried out by them. There were no aggravated penalties set out for the use of children by such groups, however.
Concerning the Children's Ombudsmen for the Autonomous Communities and the national Children's Ombudsman, the delegation said that in the case of each, annual reports were made to their executive authorities, in the case of the national Ombudsman, to the Parliament. Those reports set out recommendations for adoption which were non-binding, but taken quite seriously. The Ombudsmen had jurisdiction over all organs of the Spanish State, including the military.
Children that had been involved in armed conflict seeking asylum in Spain would be granted refugee status on the basis of humanitarian reasons, the delegation affirmed. A number of children had been granted asylum in Spain, although there was no data on the reasons for granting asylum in each case. Data on child asylum-seekers was only available by country of origin.
On awareness-raising measures, the delegation noted that Spain had had two non-governmental organizations that had organized public awareness campaigns on this topic: Amnesty International in 2003; and Save the Children in 2006.
Discussion on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
LUIGI CITARELLA, the Committee Expert serving as Rapporteur for the report of Spain on Optional Protocol on the sale of children, child prostitution and child pornography, expressed concern that the report, and the written replies, had been submitted late. Moreover, the report itself, which was a good and very extensive report on many aspects of the Protocol, appeared to limit itself to legislation and measures in place, without giving a picture of the actual situation of children in the country. In particular there was a lack of statistics.
According to the delegation's statement, international treaties were directly applicable and were equivalent to other domestic legislation in terms of jurisdiction. However this Protocol was a bit different, and needed help, Mr. Citarella underscored. For example, the Protocol specifically required States to criminalize the recruitment of children. Moreover, it was particularly important that Spain have a specific provision criminalizing trafficking in children, so that Spain could ensure extraterritorial jurisdiction for the sale of children, in particular given reports of trafficking in children into the country from areas such as Morocco.
The measures in place to combat child prostitution in Spain were good, but insufficient, Mr. Citarella felt. The age of sexual consent was very low, in particular in comparison with other European States, at 13 years. That was a sort of encouragement to prostitution.
Mr. Citarella had heard reports that in some courts the practice of confronting children with their victimizers was still in place. As Spain had laws to prevent that, and to protect children in the judicial process, he wondered what the difficulty was in implementation. Was it a lack of follow-up or a lack of resources assigned to that task?
Other Experts then asked questions, expressed concerns and requested more information on a number of topics, including the planned database on children and when that would be up and running; a lack of resources earmarked for the National Plan of Action on the Sexual Exploitation of Children; measures to provide physical and psychosocial treatment to assist and rehabilitate child victims; whether Children's and Adolescents Watch, the implementing and monitoring body for the National Plan on Commercial Sexual Exploitation, had sufficient resources and was undertaking surveys to gather statistics on this subject throughout the country; the definition of "virtual" pornography in Spain, and whether it included the use of cartoons and animations; data on child victims of sex tourism, programmes to educate vulnerable children to the risks of sex tourism, and re-education programmes for offenders; reports that law enforcement authorities did not always treat child prostitutes as victims; and whether there were any cases in which Spain had prosecuted cases of child prostitution that had been perpetrated outside of the country.
Further to the low age for sexual consent in Spain, an Expert asked what the marriage age was, and whether there was a high instance of teenage pregnancy?
An Expert was concerned that professionals involved with children, such as teachers, who were convicted of sexual crimes against minors were only suspended from their activities for two to six years. Surely, they should be prevented from working with children for life?
Noting that Spain was second in the world in terms of international adoptions, with 90 per cent of its adoptions being international, whereas adoptions within Spain were falling, as well as the fact that 33,000 Spanish children were in institutions, an Expert was concerned about why were there not more domestic adoptions. She was also worried that that might be an indicator of the presence of illegal adoptions or sale of children.
Response by Delegation
Responding to Experts' questions, the delegation noted that the Criminal Code did not specifically speak of the sale of children, because the approach in Spain went beyond the crime to the concrete subject that the law sought to protect. The Criminal Code criminalized trafficking in persons and provided for aggravated penalties where that involved minors. The same was true for other crimes as well, that is, crimes carried heavier penalties where they involved minors. The crime of sale of children as set out in articles 2 and 3 of the Convention, was therefore provided for in the Spanish Code, as was trafficking in organs, which was covered under a section entitled "harmful actions against children".
As to the age of sexual consent, the delegation noted that under international agreements States had the liberty to set the age of sexual consent. In order to change the age limit, Spain would have to coordinate with all the other related legislation and legal age limits involved.
Criminally responsibility began at age 14 in Spain. Responding to an Expert's query as to whether children from 14 to 18 were fully protected with regard to prostitution and child pornography, the delegation said they were. Under the revised legislation, which had been signed by the Council of Ministers and was before Parliament for ratification, all aspects of child prostitution were criminalized for children in that age range. However, if there were no elements of prostitution involved, that is, a child over 13 engaged in sexual relations freely, that was not a crime. With regard to pornography, that was reflected as use of minors for pornographic purposes, which bore heavier sentences where the minor were under the age of 13.
Clarifying the foregoing, the delegation said that consent by a minor could be invalidated where the person with whom a minor over 13 years was having sexual relations was in a privileged relationship – such as a teacher.
Child pornography was also not specifically defined in Spanish legislation, the delegation continued. In fact, it might be harmful and overly prescriptive to do so. However, that did not mean that Spanish law did not regulate this area. Anyone who produced, sold or distributed pornographic material that involved children either in images or with the use of children's voices, was a crime. That also covered pornographic comics.
Turning to child protection measures in the justice system, the delegation noted that, under the revised legislation, judges could no longer force a child to confront their victimizer. Testimony was always obtained with the help of a child psychologist, and other child protection experts.
To protect children in cybercafés, the law set out that such establishments had to verify users ages by means of identification documents. However, that was rendered particularly difficult because it was not always possible to establish who was using a given programme. Another emerging challenge in this area was the growth of Wi-Fi – or remote Internet connections – which increased the difficulty of ensuring the age of users, the delegation noted.
In Spain unaccompanied foreign minors were provided absolute protection, as would any Spanish minor in a vulnerable situation. They could not be expelled from the country. First, a procedure to identify them was put under way, and the minors were then either repatriated, or provisions were made for their stay in Spain. Repatriation would not be undertaken if there was a risk that the minor or any of that minor's family members would be put at risk, or if there was no one to take care of the minor in the country of origin. As needed, age checks were made, which might include bone X-rays. Bilateral agreements had been reached with three countries regarding the prevention of illegal migration by unaccompanied minors and for their protection: Morocco – where most of the unaccompanied minors coming into Spain came from – Romania and Senegal.
In terms of figures, in 2004, there had been 9,000 minors in the whole system for the protection of unaccompanied foreign minors in Spain. In 2005, that figure had fallen to less than 6,000. It was thought that the cooperation agreements and the cooperation arrangements that were in place with the three countries previously mentioned were working to lessen the number of arrivals, the delegation stressed.
Concerning the minors coming to Spain via boat, where those minors had reached Spanish territory in no event could they be expelled, the delegation underscored. They were entitled to the same protection and assistance as Spanish minors.
In Spain there was a network of centres for children who had been victims of sexual violence or abuse. In addition, there was a programme to work with young abusers, the delegation added, as well as with adult sexual offenders.
Responding to an Expert's request for clarification of the role of the various government bodies in this area, the delegation said that Children's and Adolescent's Watch was a collegial body that unified a number of different governmental agencies and bodies, as well as civil society actors involved with children. The programmes for children themselves came under each public institution, including non-governmental organizations, at the State and Autonomous Community level. Then there was the body that provided for childhood policy coordination among Government bodies, including among the Autonomous Communities, which was under the Ministry of Labour and Social Affairs. Finally, there were Director-Generals of Families and Childhood for each Autonomous Community.
Responding to concerns that Spain's resources were not sufficient for bringing adequate investigations into crimes under the Protocol, in particular cybercrime, the delegation confirmed that resources were not a problem; significant resources were earmarked for adolescence and childhood issues. Moreover, the big issue with cybercrime was that it was an international phenomenon and required global cooperation. In that connection, Spain's Central Brigade for Technology Investigation worked in close collaboration with international actors, such as Interpol. Brigade staff were sent for training to international forums and Spain was also involved in innovative measures in this connection, such as the use of filters to prevent the spread of pornography via the Internet.
On adoption, the delegation noted that Spain had a birth rate of 1.3 – either the lowest or the second lowest in the world. That might explain the high number of adoptions. The low number of domestic adoptions could be explained by a number of different factors. The children in institutions in Spain generally had psychological or physical disabilities, or were part of a larger group of siblings that could only be adopted together. Moreover, many of those children were older children. In addition, according to law, the child protection authorities had to continue to work with the biological families of children in care to the fullest extent before turning to the alternative of adoption, as a last resort. With regard to international adoptions, such adoptions took place within the full guarantees provided by domestic law, as well as the numerous international commitments in place.
In cases where Spain had clear reason to believe that certain countries were not able to provide credible guarantees, it banned adoptions from those countries, as had been the case with Guatemala. Moreover, there was a draft bill on foreign adoptions before Parliament, which sought to prevent the possibility of adoptions from countries in situations of armed conflict or in the wake of natural disasters, two situations in which trafficking in children for the purposes of adoption were known to take place, the delegation added.
Preliminary Concluding Observations
In preliminary concluding observations, Committee Expert LOTHAR KRAPPMANN, Rapporteur for the report of Spain on the Optional Protocol on children in armed conflict, thanked the delegation for the informative dialogue and for all they had done nationally and internationally in support of the goals of the Optional Protocol on the involvement of children in armed conflict. The Committee had observed Spain's commitment in that regard, and had welcomed the additional information it had received in that regard. There was no doubt that Spain was very strict with respect to the age limit of 18 years for involvement in children in armed conflict – there was no way out of it. Much information had been provided on topics raised by Experts, for example on the treatment of children from abroad entering Spain, in particular former child soldiers. However, while some of the answers had been satisfactory, there were lingering concerns, for example with regard to the indirect way of criminalizing child recruitment.
In additional preliminary observations, Committee Expert LUIGI CITARELLA, Rapporteur for the report of Spain on the Optional Protocol on the sale of children, child prostitution and child pornography, thanked the delegation but wished to raise a number of concerns. First there was a problem of criminalization of activities and offences under the protocol. Mention had been made of a new draft law, and he wondered if that might not be the opportunity to bring Spanish legislation into line with its obligations under the Protocol. Second, was the problem of collecting and analysing statistical data. The Committee was not able to accurately judge national implementation without it. Finally, there was the problem of victims of offences outlined by the Protocol, where more training was needed for professionals working with victims. Overall, the Committee was satisfied with what Spain had been doing to implement the Protocol, but would like to help it to address some of these gaps.
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