HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF SPAIN

The Human Rights Committee today concluded its consideration of the fifth periodic report of Spain on the measures undertaken by that country to implement the provisions of the International Covenant on Civil and Political Rights.

Presenting the report, Fernando Irurzun, Head of the Legal Service of the Government before the National Court of Spain, introducing the report, made special reference to the actions that had been taken over the years since the last periodic report, especially in the context of the Committee’s observations. Regarding the observation on the overcrowding in most Spanish prisons, Mr. Irurzun said that Spain had since then implemented an ambitious programme for the construction of new prisons. The target was for each prisoner to have his or her own cell and to enhance measures which made it possible to complete sentences in a regime of semi-liberty.

As to Spain’s immigration policy, Mr. Irurzun underlined that Spain’s immigration policy stood on four pillars: immigrant integration; linking legal immigration to the job market; co-operation on development in countries which were the source of migratory movements; and the fight against organized crime linked to illegal immigration and human trafficking. He drew the Committee’s attention to the fact that even undocumented aliens enjoyed basic civil rights such as those to meet, associate, join a trade union or to strike, and the right to free education until the age of 18. Mr. Irurzun added that this level of rights and of protection constituted a stimulating challenge to Spanish society given the scale of the phenomenon of immigration.

In preliminary remarks, the Chairman of the Committee, Rafael Rivas Posada, noted the efforts by the State Party to respond to the observations of the Committee. He highlighted two large categories of issues that were still causes of concern: the issues related to due process and the treatment of foreign nationals. He said that there were still doubts among the Committee’s members especially with regard to incommunicado detention. Linked to this issue was the broadening of the definition of terrorism and the practical consequences that ensued. Mr. Rivas Posada also said that the Committee was aware that the massive influx of immigrants had created many problems for the Spanish Government. But nevertheless, Spain had obligations with regard to the Covenant.

Over the course of three meetings, the Spanish delegation answered questions by the Committee relating to a number of issues, including pre-trial detention; incommunicado detention; free choice of lawyers; treatment of unaccompanied minors; deportation and expulsion of immigrants; treatment of immigrants; definition of terrorism; freedom of expression in the Basque country; xenophobic acts; cases of torture; disappeared persons; and sexual and gender based violence.

The Spanish delegation was made up of members of the Permanent Mission of Spain to the United Nations Office at Geneva; the Ministry of Justice; the Ministry of Foreign Affairs; and the Ministry of the Interior.

At the Committee’s next public meeting on Thursday, 23 October 2008 at 3 p. m., the Committee will review its working methods.


Report of Spain

The fifth periodic report of Spain (CCPR/C/ESP/5) notes that at present and for the first time, the Government of the Kingdom of Spain is composed of equal numbers of men and women and it has made the promotion of equality of men and women one of its main areas of activity. On 7 March 2005, measures were adopted to promote equality of men and women in employment, enterprises, working and family life, research, solidarity and sport and the Gender Equality Plan was adopted within the General State Administration itself. Statistical data also shows that there has been an increase in genuine equality between men and women as far as education, including university education, is concerned, as well as a constantly growing number of women in all types of work and political activity. Regarding non-discrimination, the report explains that along with other effects and causes, the world economic crisis and migration movements have led to a re-emergence of racially discriminatory theories and behaviour in certain countries which make it necessary to move forcefully to prevent and combat such thoroughly condemnable practices. In view of the difficulties that might arise in guaranteeing the right to non-discrimination, the Kingdom of Spain is strengthening protection against racial discrimination by attempting to nip in the bud dangerous and inadmissible attitudes in this sphere, contrary to equality.

As to freedom of movement and expulsion of aliens, the report states that in the last few decades, Spain has gone from being a country of emigration to a country of immigration. Spain’s open nature in respect of immigration is clearly demonstrated by the fact that, although the phenomenon of immigration is relatively recent, there are, according to the Population Census Bureau, 3.88 million aliens residing in Spanish territory. The orderly regulation of migratory flows must nevertheless be ensured so that immigration may allow the necessary legislative and social changes and the integration of immigrants. Regarding the internment of an illegal alien, the report clarifies that it must be decided by the examining magistrate of the place in which he has been interned, at the request of the Government authority who ordered the internment and for a maximum period of 72 hours. Internment takes place in a non-prison facility for no more than 40 days. Aliens subjected to internment are entitled, inter alia, to be informed of their situation and to guarantees of respect for their life, physical integrity and health; they may not in any case be subjected to degrading treatment or verbal or physical abuse; they are entitled to protection of their dignity and privacy and to facilitation of the exercise of the rights recognized by the legal system, to receive adequate medical and health care and to be assisted by the social welfare department of the facility.

Introduction of the Report

FERNANDO IRURZUN, Head of the Legal Service of the Government before the National Court of Spain, introducing the report, made special reference to the actions that had been taken over the years since the last periodic report, especially in the context of responding to the Committee’s observations and recommendations. Regarding the gaps in the Spanish Legal Code on the right of appeal against conviction, Mr. Irurzun explained that these gaps were about to be met by the creation of a new Appeal Division through an Act that came into effect in 2004. However, the procedural provisions would still have to be passed to generalize this remedy of appeal in the cases where it did not yet apply.

Concerning the situation of detainees held incommunicado, a subject that was of concern during the last review, Mr. Irurzun said that despite having suffered the largest terrorist attacks on European soil ever on 11 March 2004, Spain’s legislation and Court practice had modified the regime of detention without communication, restricting its terms of application to the point where it was used only in exceptional cases. The Committee’s concern with regard to the risk of mistreatment or torture of detainees was shared by Spain and had led to the adoption of a number of measures, among them the passing of an Act introducing the detainee’s right to a second forensic medical examination. Also, the judicial bodies had been applying very detailed supervisory measures, such as video recording throughout their time in police quarters.

Regarding the Committee’s observation on the overcrowding in most Spanish prisons, Mr. Irurzun said that Spain had since then implemented an ambitious programme for the construction of new prisons. The target was for each prisoner to have his or her own cell as well as enhancing measures which made it possible to complete sentences in a regime of semi-liberty.

As for Spain’s immigration policy, Mr. Irurzun underlined that Spain had become a State of arrival for many people forced to leave their homes. Spain’s immigration policy stood on four pillars: immigrant integration; linking legal immigration to the job market; co-operation on development in countries which were the source of migratory movements; and the fight against organized crime linked to illegal immigration and human trafficking. He drew the Committee’s attention to the fact that even undocumented aliens enjoyed basic civil rights such as those to meet, associate, join a trade union or to strike, and the right to free education until the age of 18. Mr. Irurzun added that this level of rights and of protection constituted a stimulating challenge to Spanish society given the scale of the phenomenon of immigration.

Mr. Irurzun also said that as for the equality policy, an all-embracing approach to violence against women had been put in place. An Act on comprehensive protective measures provided for judicial measures, such as the creation of the court order for the protection of the victim, penal measures increasing penalties for the crimes in the Criminal Code, and social measures designed to provide women suffering from this form of violence with the broadest social protection and educational and preventive measures.

Response by Delegation to Questions Received in Advance

Regarding detainees held incommunicado, the delegation explained that Spain had undertaken a small modulation of the Committee’s suggestion that these detainees should get free choice of legal representation. This modulation was not a violation of the Covenant and had to do with criminal investigation. The delegation referred to the French experience, where such freely chosen lawyers had been convicted of association with terrorist groups. That was why Spain appointed legal counsel for detainees held incommunicado. In this context, the delegation underlined that Spanish courts made a special effort to reject evidence that would in any way be contaminated, such as being obtained incorrectly. This small modulation did only take place during the period of incommunicado detention, as soon as it was lifted, the detainee would move to a normal regime of detention and free choice of lawyer. Spain had been asked by the Committee to stop or limit incommunicado detention and had in this regard established restrictions as to who could be held incommunicado. Now, a stricter reasoning was needed for such a detention. The delegation added that only 30 per cent of detainees held for crimes of terrorism were held incommunicado.

As to the notion of terrorism, the delegation confirmed that the Spanish definition of terrorism as a crime in Spain was in keeping with international law. There was no special criminal code that dealt with terrorist acts. The term was defined under the general criminal code as any conduct which was committed with view to terrorist ends. Terrorism was seen as an aggravating circumstance for other crimes which were not terrorist crimes themselves, such as sexual abuse for example.

Turning to the protection of personal data, the delegation explained that the protection in Spain was broader than in other European States as in Spain public data was also protected. In practice, Spanish law covered data processing of security forces by the State. Furthermore, no legislation had been adopted to restrict data protection in the context of terrorist investigations. Clearly, modulation existed as to how rights were exercised when dealing with police files. Those specific rules were adopted so as not to create obstacles for criminal investigations. Terrorists’ files were treated under a specific regime: the police was obliged to communicate those files to the authority of data protection which would then decide on the protection of the data.

Regarding sufficient resources to deal with sexual and gender-based violence, the delegation explained that specific Courts had been created that dealt with cases of gender-based crimes. Those Courts had exclusive procedures and 92 of them were already working.

With respect to the abuses committed in the course of the deportation of Moroccans, inter alia, from Ceuta and Melilla, the delegation said that in that case exceptional circumstances had led to an avalanche of actions. This had not happened before and had not happened again since then. Criminal investigations had been opened concerning possible incorrect conduct of Spanish authorities and reasons why people had died. Spain had also asked for cooperation of the Moroccan authorities on this matter.

Concerning measures to prevent torture in Spain, the Government had made intensive efforts with respect to the State security forces. For example, all members of the security forces had to have their name plates clearly visible so that at any time people would know which official was responsible. Also, instructions had been issued regarding the conduct that was expected of police officers. Police forces were not able to use any means of coercion, physical or psychological. Also, there was a National Human Rights Action Plan that included the prevention of torture. Various mechanisms for compensation were in place for victims of different kinds of violence and torture, including gender-based violence.

As to human rights training, the delegation said that police forces were trained in human rights and had to answer questions concerning human rights, international humanitarian law, and prevention of mistreatment in their final exams. The same was done for penitentiary personnel. Also, Spain was working with universities to design curricula on the use of coercion or limited use of force within the law. The Spanish authorities wanted this training to be given on a regular basis.

With regard to pre-trial detention, Spain had proceeded to a legislative reform. This reform had been necessary because of the Spanish constitutional reform. The objective was that pre-trial detention was not systematically ordered but agreed to only in special circumstances. The delegation explained that pre-trial detention would prevent the obstruction of evidence, interference with investigation or the removal of the subject of the judicial case. Under the new system, the judge could only order pre-trial detention if that was requested by one of the plaintiffs. Furthermore, there was now a mediator mechanism. Also, pre-trial detention was limited and would not go beyond the required time to serve the goal sought. This could not be indefinite, but a certain number of years. If professional assistance was required by a detainee a roster of available lawyers was used to assign legal representation. Further, the detainee could now ask for a second medical examination. The doctors doing the check-ups were generally forensic doctors and fully independent. In order to meet some of the concerns expressed by the Committee, a detainee could now be transferred to a health center if he or she showed or claimed to have lesions. The delegation added that the law on criminal procedures provided for a visit by family members and a doctor of choice.

Questions by Committee Experts

A Committee Expert said that it seemed that up until now there had been about 25 observations of the Committee that had not been followed up on by Spain. The Expert wanted to know about some cases where something was concretely done. He said that it was a shame that the Committee was coming back to the same question again and again. Furthermore, what measures had been taken since the 2007 bilateral agreement with Morocco? What were the causes of the Ceuta and Melilla deaths? What were the reasons that these very laudable efforts of cooperation with Morocco had come to a halt? He asked why young Africans were subjected to ill-treatment during their arrest and why they were sent home without any guarantee of their safety.

Concerning the definition of terrorism, an Expert asked what the consequences of this definition were. The Expert thought that the definition was very extensive. As to acts of provocation to terrorism and conspiracy, the Expert said that there the definition posed especially big problems. Not so much the ideas, but more the actual facts mattered. The Spanish definition criminalized acts that were associated with terrorism and any other act that could be tied to terrorism, either indirectly and directly. The Expert underscored that the leeway for interpretation was almost unlimited there. A wise person could use this to interpret the definition wisely, but they were not all wise.

As for incommunicado detention, an Expert said that this sort of detention meant being cut off from the world. He asked if it was correct that there were two phases: before the judge intervened it was five days of detention and after the judge intervened another five days with the possibility of extension of three more days. This happened at a time in which the person needed help more than ever. The Expert asked if there was any more detailed information on incommunicado detention, as for example the number of people that had been involved and the crimes they were detained for. Another Expert added that incommunicado detention was aimed at extracting a confession. Today, all the outgoing information could be checked. Why was incommunicado detention still necessary? Also, she did not understand the systematic mistrust in Spanish lawyers. Another Expert focussed on the confessions obtained during incommunicado detention. What was the burden of proof to show if a confession was obtained by fair means? He asked whether it was on the individual or the authorities. How a confession had been obtained was of course always very difficult to show, the longer a person remained in incommunicado detention the more difficult it became. On the role of judges in general, there were apparently judges who ordered incommunicado detention without having the individual brought before them. Also, there were judges who ordered videotaping, but others looked the other way. The Expert asked why videotaping could not be made obligatory without having a judge ordering it.

Regarding torture and ill-treatment, an Expert said that she had seen statistics that in the period of 2001 to 2007, 5,032 people were affected by torture and degrading treatment. In 2007 alone, 689 persons were treated in a way that was in violation of the Covenant. As these numbers showed, torture was widespread in Spain. The system of incommunicado detention was of special concern in this context. The Committee had suggested abandoning this system of incommunicado detention. What had happened since? Was it possible that Spain now considered abandoning the incommunicado detention? Many Experts noted that there were several reports on torture in incommunicado detention and that to prevent torture it was absolutely necessary to address this kind of detention.

With regard to legal assistance, the delegation had said that the delegation said that the appointment of the lawyer to detainees in incommunicado detention had been established in the interest in justice. The Expert said that she could not see how a system, in which people were hindered from choosing their own lawyer, could be in the interest of justice. Did this system only apply to 30 per cent of the people held incommunicado? Did the other persons get to choose their lawyers?

Turning to ordinary prisoners, at what point did the detainee meet with his lawyer? As reasons that could legitimize pre-trial detention, the delegation had mentioned six months for the possibility of destruction of evidence. Why was there a six months period of destruction of evidence? Who was detained for six months with regard to the evidence and who was detained for up to four years? How could it be said at the beginning of the investigation how long a person would be held in pre-trial detention? It was not clear how the pre-trial detention could be determined before the investigations had been carried out. Did Spain envision changing the form of detention? Furthermore, how could a person in detention be subject to a longer detention only because of judicial organizational problems as for example that his trial could not taken place?

Turning to disappeared persons, an Expert underscored all the efforts undertaken by Spain so that the tension in this issue was appeased. Spain had adopted a law of amnesty and given the context at the time, this was perhaps the best decision. But did this law really appease the tension? Has it led people to put down their weapons? Some lists mentioned 123,000 disappeared people under the Civil War. The Expert underlined that this was an issue that had shaken Spanish society. Now, It was a matter of mourning these people properly and reestablishing their honour and dignity which was the largest means of reparation. The Expert said that the law could not resolve everything since social reality was very different. He also mentioned that Spain had not ratified the treaty related to forced disappearances. However, Spain was capable of providing a peaceful resolution of the issue. Another Expert asked whether the fact-finding process that had to take place to address disappeared persons could be linked up with reparation. Another Expert drew the delegation’s attention to a specific case. In the case of Carmelo Landa who had been detained since last February and was a member of the Batasuna party as well as a member of the European Parliament, the Expert wanted to know if he was in prison because he had developed separatist ideas or because he was accused of terrorist acts.

An Expert wanted clarification on the number of courts that had been established to deal with crimes of sexual and gender violence. Non governmental organizations said that courts did not have sufficient means to deal with the allegations. As in many other countries, women in Spain were afraid of reporting domestic violence. She was alarmed at the increasing number of women that had been killed by their spouses or partners and asked the delegation to elaborate further on the measures that had been taken in this regard and the effectiveness of those measures. Another question was what kind of legal help a woman got when she went to court to protect her rights. This was not a legislative question because there was a ruling. But this ruling did not seem to work since many women appeared alone before courts. As women could often not return home after they went to court, there was need for shelters. The Expert asked the delegation to explain how many shelters there were and how they worked. Also, the Ombudsman in these issues had stated in a report the failure of the State to provide assistance to the women concerned by domestic violence.

The representatives of the non governmental organizations had been complaining that they had not been consulted, contrary to what the delegation said about their cooperation with civil society. The Expert asked Spain to further clarify this issue.


An Expert noted that before one was charged one could be held for four years in pre-trail detention. Had Spain made a reservation to the Covenant in order to take such a lengthy pre-charge detention? Could a person be questioned throughout those four years without a lawyer being present? If the person refused to answer, the Expert asked if this silence could be held against this person. Was it true that the lawyer could not give private advice? If there was no physical abuse, one could have one opinion on a long pre-trial detention. But if physical abuse existed, as they had to learn the hard way, pre-trial detention shone in a different light.

Response by Delegation

Concerning ill-treatment, the delegation reiterated that preventive measures had been put into place. He specifically mentioned the education of police officers. As to conscientious objectors, compulsory military service no longer existed. Therefore, problems such as conscientious objection did not arise anymore. Regarding new prison cells, the delegation said that 19,000 new cells were planned. Today, 5,486 were being used by inmates. Some 5,627 were still being built and 8,044 were at a blueprint stage with the architect. In 2012, there would be 19,106 cells available for use.

Regarding immigrants and the procedure that awaited them, UNHCR had noted in a report on the issue that on arrival, the Red Cross provided health services when these persons arrived on the coast. Most of the immigrants came from Mauritania or the Southern Sahara. The delegation added that the Spanish society was very sensitive on this issue.

As to the degree of implementation of the definition of terrorism in the Criminal Code, the delegation said that concerning the reform that had taken place so far and very recently in the Spanish criminal code, the direction was towards a specification. In the Criminal Code, street violence and destruction of public property, when it could be proven that it was linked to terrorism, were now clearly defined. There was also an article which referred to sending funds to criminal organisations and the use of assets for a terrorist group. The delegation explained that a terrorist group could express an idea, and was not punished for doing so. But measures were undertaken if those similar ideas were used to make some people into heroes or martyrs. This was done in order to not humiliate a victim a second time.

Turning to the general system of imprisonment in Spain, the delegation explained that it could be applied only when the police had reasonable grounds to believe that a person had committed a crime. The delegation reiterated that police custody could not last longer than the time needed to carry out investigations needed. The person detained must be brought before a judge physically as soon as possible in maximum 72 hours. Then there was provisional imprisonment which could only be ordered by a judge. The person in custody could communicate with a member of his family and interrogation only took place in the presence of a lawyer. The detainee was informed about his rights, including the right to remain silent without that right being held against him. A doctor checked on a person held incommunicado every 24 hours.

Regarding the incommunicado system, the delegation said that the particularities were that the detention could be extended beyond 72 hours to five additional days and then another five additional days. Not allowing people to make a call did not mean that they did not have access to legal counsel. Sometimes it was damaging to the detainees themselves to choose their own lawyers. It was not the case that Spain did not trust their lawyers in general, but some lawyers were part of the entourage of terrorists.

Regarding the victims of the Civil War, the delegation said that today, the grandchildren of those who died in the Civil War were very well able to look at the past calmly. Efforts had been made to identify graves and bodies. Also, indemnification of victims of the Civil War and the subsequent years during the Franco era was given. Regarding the deprivation of liberty, the delegation said that Carmelo Landa was not persecuted for political ideas. Not only in the Basque country did independentist parties exist. The current deprivation was linked to a criminal investigation, concerning the Batasuna board. The charge was the membership of the terrorist organization ETA. He added that even the European Union considered Batasuna as being a part of ETA.

As to gender based violence, the delegation said that this was violence that took place within society and needed a much broader approach from the State. Regarding the number of courts that dealt with gender based violence, there were 96 courts that took care exclusively of cases of gender based violence and 360 other courts shared such cases. The law on gender based violence provided for educational measures as well. The average of women that died due to gender based violence went down from 71.5 to 65 per cent in the last years. One of the most important issues was to combat this kind of violence in the social arena.

Regarding torture, the delegation asked what was the source of the numbers that the Expert had mentioned. The delegation did not believe that those numbers were correct. Spain had a fluid dialogue with non governmental organizations and neither Amnesty International nor Human Rights Watch had such numbers of torture. The delegation deplored the use of false complaints by non governmental organizations.

Concerning the appointment of lawyers to detainees, the delegation said that the rotation system for lawyers was compulsory in Spain. That meant that it was not the worst lawyers that were provided because everyone had to take part.

In provisional detention, the detainee had contact with the judge, not the police. Also the provided times were a limit, not a duration determined in advance. If the risk of flight did not exist the person had to be released. If a lawyer could show that the circumstances for provisional detention had changed, a judge had to consider this and decide on the matter. The delegation said that 25 per cent of inmates were constantly changing and were located in preventive detention in different prisons.

As for the forensic doctor for persons in incommunicado detention, the delegation said that a doctor visited any person in incommunicado detention once every 24 hours. Furthermore, the delegation explained that the police statement was not enough to incriminate someone. If the suspect later said that he did not agree with what he had said earlier on, the statement could no longer be used by the police.

Follow-up Questions by the Experts

An Expert noted that 72 hours maximum of pre-trial detention in ordinary cases was rather lengthy. She asked what kind of judicial checks were in place. Also, complete isolation was not justified for the reasons mentioned by the delegation. Even if a person was not in solitary confinement, he could be stopped from getting into contact with a special group. Referring to the free choice of a lawyer, the Expert said that even if there was a decision saying that there were lawyers who colluded with terrorists, this was not reason enough to stop someone from choosing his or her own lawyer. Other means must be found to refuse one specific lawyer if there had been earlier incidents regarding collusion. Furthermore, were the meetings with the lawyer private and how often could they take place? Another Expert said that it was not clear why incommunicado detention had to be in the hands of the police. He noted that the regional Basque police did not use incommunicado detention anymore, it was only the National Police that used this kind of detention.

Concerning the cases of torture which the delegation believed not to be correct, an Expert said that the numbers came from a non governmental organization called La coordinadora para la prevencion de la tortura which had been very active in this field for many years. She also asked the delegation to further elaborate on torture which seemed to be a very widespread phenomenon in Spain.

Response by the Delegation

Regarding pre-trial detention, the delegation said that within 24 hours a judge had to be informed about the detention. Many States in the European Union had a practice in which lawyers did not go into police stations, but in Spain they did. The lawyers were present during the interrogation and signed the statement with the possibility of making additional remarks. In the incommunicado system, this was provided by the ex officio lawyer. In 2007, there were 110 persons that were held in incommunicado detention suspected of terrorism and two persons because they were part of an organized drug trafficking network.

The Spanish delegation would study the report mentioned by the Expert and highlighted that not all of the complaints that had been made were referring to torture but also to for example the abuse of force at football games.

Turning to migrants, the delegation explained that as of today about 13,000 persons had reached the coast of the Canary Islands. Those people whose country of origin had to be determined were being lodged in a center for foreigners 40 days while awaiting a regularization of their status. There were lawyers provided who informed the persons of their rights in a language they understood. If they already got the expulsion order they could find the appropriate way of remedy with a lawyer. The delegation underlined that every foreigner arriving in Spain had the right to a lawyer.

Of 196 rulings that had been handed down, 12 were granting asylum to the applicant. Also, 36 rulings were handed down to suspend expulsion. If asylum was denied and UNHCR supported the granting of asylum, the person could not be extradited and was granted asylum. It was underlined that there was access to legal counsel for immigrants, as well as access to interpretation. Immigrants were also given a model on how to seek asylum. The delegation stressed that the right to free legal counsel was an inalienable right to all people who were in an irregular situation in Spain.

Regarding the question to what extent Spain could justify limitation to the freedom of speech in the Basque country, the delegation said that Spain was not aware of any violations of the right of freedom of expression. In the government of the Basque country, two of the three parties of the government defended the independence of the Basque country. Nonetheless, there were no indications of persecution of any ideology in the Basque country. Regarding the Batasuna party, the delegation explained that it was outlawed criminally and through the law on political parties. The ideology of the Batasuna was not evaluated in the process of outlawing them. The delegation clarified that an anti-democratic party could exist but means destroying democracy could not be used. Batasuna was a terrorist organization according to the criteria set forth by the European Union. Regarding a newspaper that had to be shut down, the delegation said that the publishing house had been used to finance terrorist acts. The closing of the newspaper was not related to the editorial line of the newspaper but to the publishing house being used as an instrument.

As to the protection of children on the Canary Islands, the delegation said that children were never detained. They were identified and their age was determined since the immigration procedure was very different for persons under the age of 18. As soon as they were minors, it was legally mandated that they had to be sent to social services. Those children were sheltered in specific centers and could not be sent back immediately. As a next step the family was located. The delegation underscored that maximum efforts were geared towards the protection of unaccompanied minors.

Regarding xenophobia, the delegation said that there were public awareness campaigns. Also, guides had been drafted for law enforcement officers to better deal with situations in which xenophobia was an issue.

Turning to the promotion of the culture, traditions and languages of minorities, the delegation said that the concept of minority was not applicable as such to Spain. However, the delegation mentioned agreements that had been signed with religious groups such as the Russian-Orthodox Church or the Jehovah Witnesses and others. As to the Roma, a guide with recommendations for police officers had been drafted working together with several organizations.

Further Questions by Committee Experts

As to immigration, an Expert said that there was no doubt that Spain undertook measures to deal with this enormous problem. The Expert wanted to know more about the expulsion order: Was it given after the medical help was provided? At which point could the person apply for asylum? Were those who arrived informed of the possibility that they could apply for asylum or did related information remain rather discreet? Furthermore, he wanted to know what criteria were applied for refusing asylum and to what extent did humanitarian and economic considerations play a role. The principle seemed to be rejection and the granting of asylum seemed to be an exception.

Concerning the incidents of Ceuta and Melilla, the Expert asked whether the delegation considered that during these events abuse had happened. As to racism and xenophobia, the Expert said that it was mentioned almost everywhere asked what Spain was doing to combat xenophobia. Was Spain intending to do the same with regard to combating religious intolerance.

Regarding xenophobia, an Expert mentioned two cases in which violent incidents had taken place in police stations against persons from South America. There were clearly racist motives involved. He asked whether the delegation was aware of these incidents and whether further investigations had taken place. Another Expert noted that Spain used to be a transit country for immigrants which had changed as many immigrants wanted to stay in Spain now. There were reports of arbitrary decisions on asylum requests and a considerable tension between non governmental organizations supporting asylum seekers and the Government.

An Expert drew attention to the fact that there was a large number of unaccompanied children in Spain. Most of them came from Morocco and some of them from Senegal. The delegation said that they were not detained, but for how long could they be kept in the police stations? Was it true that they could be kept for up to two weeks in those police stations in order to determine their age. She further wanted to know under which conditions they were kept in the police station. Were there any mechanisms in place to ensure that children were not kept unnecessarily long in police stations and were sent immediately to the centers that catered for them? There were reports that children were subject to serious abuse in such centers by other children and staff. She asked what measures had been taken to prevent such abuse. A child that did not want to go back to his country of origin was represented by the centers that proposed repatriation. This posed a problem regarding the child’s best interest. Also, a child was not granted legal assistance. Was the child informed that he or she had the possibility to seek asylum?

As to bilateral agreements with Morocco, the Expert wanted to know what safeguards there were to prevent refoulement. How did Spain ensure that the countries in which children would be sent back had the capacity to care for those children? Many, if not all problems arising with these unaccompanied children would diminish if those children were supported with legal assistance. In cases in which pro bono lawyers had represented the children, the expulsion order had usually been lifted. The Expert asked for statistics on unaccompanied minors, pending expulsion orders and the number on how often asylum had been granted.

Turning to the banning of a certain newspaper linked to ETA, an Expert said that there had been several newspapers that had been shut down. He asked how many newspapers there were now in the Basque country. As to the fact that two parties in the Basque country were openly claiming independence from Spain, the Expert said that if other civil society organizations did the same, they were met with serious consequences.

Regarding the presence of a lawyer during police interrogation, an Expert asked whether there were two types of interrogation a formal and an informal one in which the lawyer was not present. Did the lawyer only observe or also participate actively? A case had been put before the Committee in which the judge did not permit the presence and intervention of a lawyer. The Expert wondered whether maybe the law was not very clear on what rights a detainee had.

Concerning undocumented migrants, an Expert asked whether they had the right to costly medical care, for example if they were affected with HIV.

Answers by the Spanish Delegation to the Experts’ Questions

Concerning deportation and rejection at the border, the delegation said deportation was an administrative process in which the person was heard. This process included legal assistance for the individual as well as the right to appeal. If the foreign national who was ordered to be deported lodged an appeal, deportation was suspended. The person would be lodged in a center for foreign nationals, which was not a prison, on a court order.

Regarding asylum, UNHCR came into play at two stages: they were informed that an application for asylum was lodged and at the time of the decision. At both times, UNHCR had the possibility to express its views. Concerning the criteria, the delegation said that humanitarian reasons could be brought to the attention of the judiciary. This measure was successful even if those reasons had not been accepted earlier on in the administrative process.

Regarding measures to fight xenophobia, the delegation explained that apart from public awareness-raising campaigns, there was a school curriculum which included citizenship and human rights. This class was geared to the entire population.

As to the two incidents that had xenophobic connotations, the delegation said that both had led to investigations. Provisional detention had not been set for the defendant in one case and that was why he had been released. The second case concerned minors and was also still pending. The delegation underlined that both cases caused widespread concern in Spanish society.

With respect to minors, the delegation said that until mid-October 2008, seven minors had been deported. In 2007, the number was 19. If there was no family and no guardianship, the responsibility was put on the autonomous community level. In each region there were special departments taking care of unaccompanied minors. Prosecutors in Spain had the instruction that for age determination minors had to be sent to a medical center. If they were minors, there were then sent to centers taking care of minors.

As to the closure of media in the Basque country, the delegation said that there were 12 newspapers in the Basque region and two of them had been closed. Batasuna was the only illegalized party in the Basque region because it was part of ETA. The illegalized Accion Nacionalista Vasca was linked with the Batasuna party. Political pluralism was a concern to the State, including in the Basque country.

Concerning racism and the report of the UN Special Rapporteur as well as the Eurobarometer, a sociological survey throughout Europe, the delegation believed that there was no reason for concern over this matter in Spain. There was an Observatory for Racism which could alert the Government in case of an increase in xenophobic acts. If acts were committed in a racist context, this was of course an aggravating circumstance.

As to the assistance of the lawyer, the delegation said that a lawyer doing his job properly would ensure that a police officer was doing his job properly as well. An individual could always complain about a lawyer in case he was not satisfied with the job done by the lawyer.

The Constitutional Court had not made a ruling regarding health care for undocumented migrants because that had not been an issue so far. In the specific case of minors, this was provided by the public health services. Pregnant women, arriving on those rickety boats for example, were entitled to health care during their pregnancy, birth and to post-natal care. This entailed a resident permit for humanitarian reasons. In exceptional cases, resident permits would also be given to persons who suffered from an incurable disease which was not treated in their country of origin.

Concerning a national human rights institution, the delegation mentioned the Ombudsman. The Ombudsman was a human rights institution in line with the Paris Principles. It was correct that the mandate was restricted to the public sector. Other institutions monitored human rights in the private sector, among others the Equality Monitoring Centre.

Question by an Expert

An Expert insisted that she had information that children were kept in police quarters, even though the law said otherwise. She asked whether there were measures to ensure that those laws were followed.

Response by the Delegation

The delegation questioned the correctness of the Expert’s information, adding that there were prevention mechanisms in place. Normally, the minors arrived illegally. They were brought in by the Red Cross and UNHCR and if those organizations would see that what the Expert had said was true, they would certainly be alarmed which was not the case. The delegation said that a child was identified but never detained.

Preliminary Concluding Remarks

RAFAEL RIVAS POSADA, Chairperson of the Committee, in preliminary concluding remarks, noted the efforts by the State Party to respond to the observations of the Committee. He highlighted two large categories of issues that were still causes of concern: the issues related to due process and the treatment of foreign nationals. He said that there were still doubts among the Committee’s members especially with regard to incommunicado detention. The Committee would follow the evolution of the issue in Spain. Linked to this issue was the broadening of the definition of terrorism and the practical consequences that ensued. Terrorism was one of the world’s great problems, especially with regard to measures taken in practice. Mr. Rivas Posada also said that the Committee was aware that the massive influx of immigrants had created many problems for the Spanish Government. But nevertheless, Spain had obligations with regard to the Covenant.

Mr. Rivas Posada underscored that Spain did not comply with the Covenant regarding a judicial review by a higher court. The State was aware of the high number of complaints lodged by citizens regarding the possibility of a review of criminal sentences. The Chairman stressed that it had to be a higher Court, as the Covenant stipulated. This was a matter that had to be studied further. There was also an enormous doubt caused by the confusion about the Spanish cassation system. Mr. Rivas Posada underlined that cassation was not a remedy. There had been big changes in Spain, but jurisprudence had not been consistent.