HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF REPORT OF SPAIN

Press Release
HR/CT/456

HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF REPORT OF SPAIN

The International Covenant on Civil and Political Rights was part and parcel of Spain's domestic legal order and was directly invoked in the courts, the Human Rights Committee was told this afternoon by that country's delegation, as it began consideration of Spain's fourth periodic report.

Updating developments on matters related to the rights guaranteed by the Covenant, Juan Luis Ibarra, of the Ministry of Justice and Interior, said that in 1995 the death penalty was abolished also for times of war, thus derogating from the military penal legislation that still provided for that type of punishment. He noted that the death penalty had been abolished in 1978, except for what the military penal law might provide in times of war.

Javier Borrego, also of the Ministry of Justice and Interior, said a new Criminal Code adopted in 1995 had recognized offences against the international community, including genocide and the dissemination of doctrines justifying genocide or seeking to rehabilitate genocidal institutions or regimes. It had also introduced offences relating to discrimination owing to racist, anti-semitic, ideological or religious motives. Also contemplated were offences relating to the disclosure of personal data on the ideology, religion, beliefs, social condition or sexual orientation or behaviour of an individual.

Questions by Committee experts addressed issues such as specific measures adopted to prevent the recurrence of discrimination in Spain, how judges were chosen and whether Spain had been able to overcome practices which tended to politicize the judiciary. Information was also sought on what was being done to prevent violence against immigrants, including violence by the police. It was also noted that Spain's report was not clear on how the defining lines between Spain's "autonomous communities" were drawn. Information was sought on how that system applied, in particular, to the Basque community.

The delegation was also asked about what was done with children born out of wedlock and whether the natural father also had parental authority. Questions were posed about specific programmes to encourage women's

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participation in public life. On the question of racism, further information was sought on educational programmes on intolerance, racism and xenophobia.

Other members of the delegation of Spain presenting the country's periodic report were Juan Zurrita, of the Ministry of Foreign Affairs, and Alvaro Rodriguez, of Spain's Permanent Mission to the United Nations.

The Committee will meet again at 10 a.m. tomorrow, 21 March, to continue consideration of the periodic report of Spain.

Committee Work Programme

The Human Rights Committee met this afternoon to begin consideration of the fourth periodic report of Spain on measures taken to implement the provisions of the International Covenant on Civil and Political Rights (document CCPR/C/95/Add.1).

Under article 40 of the Covenant, every State party has undertaken to submit reports to the Committee on the implementation of the Covenant. The report should take into account questions raised in the Committee on information supplied in the previous report, as well as the Committee's general comments. The report should also inform on changes made or proposed in laws and practices relevant to the Covenant, and progress made since the Committee last considered the State party's implementation of the Covenant.

Addressing article 1 of the Covenant, on the right of self- determination, the report states that the process of establishing the so- called "State of Autonomies", pursuant to Spain's 1978 Constitution, is practically concluded, and a new phase of improving or consolidating the system of autonomy has begun. Conflicts of jurisdiction between the State and the Autonomous Communities are diminishing. That system has proved to be useful and effective in resolving the pluralistic reality of Spain by channelling the old tensions into the ordered framework of the State of Autonomies. It adds that by a 1993 regulation, each Autonomous Community is assigned 15 per cent of the cash revenue from the personal income tax returns filed by taxpayers residing in it.

On Spain's implementation of article 4, which deals with derogations from Covenant's articles in situations of state of emergency, the report refers to provisions of the Constitution governing states of alert, emergency or siege. It adds that since the reintroduction of democracy in Spain, no state of alert, emergency and/or siege has been declared.

Concerning non-discrimination and equality of the sexes, there is reference to a report by the Institute for Women on the situation of women in 1992. That report shows that women are equal to men as regards education, including university studies, and that the percentage of women in employment is constantly increasing. However, in the political field, women's participation is still lower than men's, although from the legislative or administrative standpoint there is nothing to prevent or impede access by women to political life. Pressure by women's groups and the training and instruction of women, which is equal to that of men, should result in narrowing the gap between men's and women's participation in the political field, although not as rapidly as in other social areas.

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The report cites measures taken by Spain to strengthen the prevention and punishment of offences against the individual for reasons related to the victim's ethnic or national origin, including legislation being drafted, according to which the freedom of expression cannot be interpreted as including racist expressions.

Concerning the right to life, addressed in article 6 of the Covenant, the report states that on 22 March 1991 Spain ratified the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty. Spain reserves the right to impose the death penalty in time of war, and also in extremely serious, duly substantiated cases. Decisions imposing a death sentence may be subjected to judicial review by the Supreme Court.

Regarding the treatment of prisoners and other detainees, dealt with by the Covenant in articles 7 and 10, the report states that the legal classification of the offence of torture has been amended in the draft new Penal Code, bringing it into line with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

According to the report, the punishment of incommunicado detention or solitary confinement requires a document to be drawn up informing the individual of the offence attributed to him and enabling him to defend himself either orally or in writing. Solitary confinement should only be applied in cases where there is obvious aggressiveness or violence on the part of the inmate or when the inmate repeatedly and seriously disturbs harmonious relations in the institution. In no case should it last over 14 days, and it is open to appeal before the Prisons Inspection Judge.

Further, in cases of solitary confinement, appeals should be given urgent and preferential treatment. In cases of organized crime and terrorism, decision of incommunicado detention must be confirmed by a judge within 24 hours. The detainee should have the assistance of a lawyer but has the right not to choose it.

On article 9, which concerns the liberty and security of person, the report provides information on detention of individuals, including that a detainee should be released or placed at the disposal of the competent judicial authority after not more than 72 hours. In cases of organized crime and terrorism such a limit may be extended up to five days.

Concerning the right to privacy, the report refers to a regulation adopted in 1992 on the automatic processing of personal data. Also under that right, it states that practising one's sexual preference forms part of an individual's privacy and cannot be a ground for discrimination. Thus, citing "sexual preference" as a possible ground for denying a person a service to which he would have been entitled is a punishable offence.

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The report adds that in 1994, the Congress of Deputies adopted a resolution calling upon the Government to reform the 1984 Conscientious Objection Act in order to ensure the availability of an alternative social service. That resulted from the growth in the number of conscientious objectors.

On matters relating to the family and the protection of children, the report states that in 1989 a new offence was introduced into the chapter of the Penal Code dealing with abandonment of family and children. It punishes non-payment of legally approved maintenance to spouse or children. The report adds that, in practice, it is proving to be extremely useful in resolving the problems deriving from neglect of the family in the event of a breakdown in the marriage.

Information is also provided on de facto unions. According to the report, "de facto unions of unmarried couples are cohabitation arrangements in which a man and a woman live together in a stable relationship as though they were married; nowadays couples formed by persons of the same sex who also live together in a stable relationship are also beginning to be regarded as such de facto unions". Certain effects of those unions are beginning to be recognized in legal texts and judicial decisions. Children of non-matrimonial unions enjoy absolute equality in relation to children born in wedlock.

Concerning the implementation of article 27, which addresses the rights of persons belonging to minorities, the report says that the State and the largest religious minorities (the Evangelical Church, the Jewish communities and the Islamic community) have concluded some cooperation agreements aimed at ensuring the full enjoyment of the rights of the persons belonging to such minorities.

Among other issues to be taken up in connection with the report of Spain are measures taken to guarantee the exercise of the above rights by the Gypsies. Also, measures taken to disseminate the rights set forth in the Covenant and its Optional Protocol.

Other issues expected to be addressed include the following: breaches of the regulations governing the use of firearms by the police and the national security forces; general laws and regulations introduced to combat terrorism; and measures contemplated to deter "economic immigrants" from requesting asylum in Spain, in the context of regulations on the right of asylum and refugee status.

Introduction of Report

JUAN LUIS IBARRA, Director General for Codification and Cooperation and International Legal Cooperation of the Ministry for Justice and Interior of

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Spain, said that since his country's fourth periodic report was submitted, in April 1994, a decisive stage of the constitutional basic programme concerning human rights had been concluded. Among those recent developments, he cited the adoption of a new Criminal Code. Outlining principles contained in the new Code, he mentioned measures aimed at combating discrimination and fostering equality.

Continuing to update the report, he cited a 1996 act on legal protection of minors, which was also based on the United Nations Convention on the Rights of the Child. There had been an attempt to address rights such as those to honour, privacy, reputation, information, ideological freedom, participation and association, free expression and right to be heard both within the family and in the educational and judicial arenas.

He also mentioned the act intended to provide for the victims of sexual offenses. It aimed at protecting victims of violent crimes, establishing solidarity through economic assistance. The principle of solidarity was the conceptual basis for steps taken concerning additional acts. For instance, legal aid should be provided to the poorest members of society. Better mechanisms for access to the courts had been established in that regard.

Concerning the death penalty, he said the 1978 Constitution had abolished it except for what the military penal law might provide in times of war. A 1995 act had abolished also the death penalty for times of war, thus derogating from the military penal legislation that still provided for that type of punishment.

He underlined that Spain was continuing to take steps to guarantee equality between the sexes. Positive measures had been taken to train women for jobs and to review teaching material to remove sexual stereotypes. Measures concerning the implementation of the right to education had been important in that regard. He also cited a 1995 law which addressed students with special educational needs. He stressed that compensation action had been implemented in educational centres with significant groups of students belonging to cultural or ethnic minorities in difficult situations.

Discussion of Legal Framework; Discrimination; Minority Rights

JAVIER BORREGO, Government Counsel of Spain, said the Covenant formed part and parcel of Spain's domestic legal order, and cited several Supreme Court cases in which it was directly invoked in the courts of his country, including 144 cases in which explicit reference was made to the Covenant. In administrative disputes, there were 24 Supreme Court sentences which invoked the Covenant. In labour and social law, the Covenant was invoked explicitly in six cases. In Spain's Constitutional Court, there were 61 cases in recent

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years which invoked the Covenant. It was also invoked at the lower levels of the judicial system.

He said the Spanish Government examined the views issued by the Human Rights Committee with painstaking detail. If a violation of the Covenant took place in the field of law enforcement, article 121 of Spain's Constitution came into play. That article provided for compensation in such cases at the expense of the State. If the violation occurred in another sphere, article 106 (2) came into play. According to that article, private individuals were entitled to compensation for any damages inflicted on them through the inadequate functioning of Spanish public services, except in cases of force majeure.

He said the Criminal Code of 1995 introduced the following offences: personal discrimination owing to racist, anti-semitic, ideological or religious motives, or based on handicaps; libel or slander against individuals or organizations based on such criteria; the denial of public services on the basis of such criteria; and the denial of private services for the exercise of professional duties based on such discrimination.

He said the Code contemplated offences against freedom, including: threats aimed at inspiring fear in an ethnic group; offences against privacy; and the revealing of personal data on the ideology, religion, beliefs, social condition or sexual orientation or behaviour of an individual. Another offence was discrimination in public or private employment based on religion, belief, ethnicity, nationality, gender, family situation or handicap.

Also recognized under the Code were offences against the international community, he said. Those included genocide and the dissemination of doctrines justifying genocide or seeking to rehabilitate genocidal institutions or regimes.

JUAN ZURRITA, of the Ministry of Foreign Affairs of Spain, addressing the question on measures to promote the access of women to political life, said that matter had received a great deal of attention from the Government. While it was a gradual process, a great deal of progress had been made. Concerning women in Parliament, he said there had been a change in recent elections, including the latest on 3 March, and there were now 77 female deputies. Also, at the highest levels of government, the same increase could be observed.

Mr. IBARRA, replying to a question on the system of Autonomous Communities, said the Constitution did not regulate the matter, it was for the Communities to decide. In order to understand the current state of such a system, the document which most faithfully reflected the situation was the one containing the debate in the Senate on the Autonomous Communities. The first

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of those debates took place in 1976. He stressed the voluntary nature of the Autonomous Communities and the decentralization of the system.

Turning to the question on persons belonging to minorities, he said Spain had become a host country to minorities, which was the opposite of its previous situation, which was that of a nation of emigrants. Concerning the Gypsy people, a programme was under way designed to provide an enabling situation for them in all realms. A follow-up commission to that programme had been set up. The programme had managed to take action to benefit the Gypsy people at all levels, including access to the job market, schooling for boys and girls, and access to health service, particularly with regard to Gypsy women. There were specific instructions to the police on how to deal with people with different racial features, when compared to the dominant racial feature in the country.

Concerning the dissemination of the Covenant, Mr. BORREGO said both the Covenant and the Optional Protocol were widely disseminated in the country. The rights set in both documents were the subject of studies carried out at all levels of the educational system, focusing always on the question of fundamental rights. There were courses for attorneys and lawyers on those instruments.

As to what extent the public had been informed about the report to the Committee, he noted that the press at this very moment was covering the presentation of the periodic report.

Questions from Experts

FAUSTO POCAR, expert from Italy, said it was unique that so many decisions had been handed down making explicit reference to the Covenant. That point should be highlighted. However, more information was needed on that jurisprudence. What kind of decisions were they? How had the Covenant been taken into account? In such cases, was the Covenant used to address gaps in Spanish law? Was it used to interpret the human rights provisions of the Spanish Constitution?

JULIO PRADO VALLEJO, expert from Ecuador, said he had followed closely the applications of the Covenant in Spain. Substantial progress had taken place. Recently, such measures as abolition of the death penalty had been adopted. What specific measures had been adopted to prevent the recurrence of discrimination in Spain? What had been done to resolve the difficulties which had arisen in Spain's system of autonomous communities?

Addressing the independence of the judiciary, he asked how judges were chosen in Spain. Had Spain been able to overcome practices which tended to

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politicize the judiciary? Was the Covenant incorporated into the law? Were judges and courts actually implementing it in their decisions?

MARCO TULIO BRUNI CELLI, expert from Venezuela, said he was impressed by the advances made by Spain in the field of human rights. That included such elements as the provision of free legal assistance and abolition of the death penalty. It was "extraordinarily significant" that the Supreme Court had cited the Covenant in so many of its decisions.

In addition to the campaign against xenophobia and for tolerance, what other practical steps had been taken to address those problems? he asked. What was being done to prevent violence against immigrants, including violence by the police? How many immigrants were there in Spain? What kind of protection did immigrants and Gypsies have with respect to equality of salary and working conditions?

CECILIA MEDINA QUIROGA, expert from Chile, expressed pleasure at "the enormous advance of human rights in Spain". She was very impressed with the number of rulings which cited the Covenant. How well informed were the lower Courts about the Covenant? What happened when the Committee presented the view that there had not been due process in a particular case? In preparing its report for the Committee, did the Government circulate the report among non-governmental organizations and universities to obtain their views on it?

A new offence had been described for non-payment of spousal child support, she said. The response appeared to be harsh. Had the effect on children of detaining an offending individual been taken into account?

RAJSOOMER LALLAH, expert from Mauritius, said there had been many areas of progress described in Spain's report. An impressive list of cases had been given in which the Covenant had been cited. To what extent were the Committee's general comments made known to the judiciary in Spain?

Apparently, the views of the Committee were not "executory" in Spain, he said. If, in a particular case, the Committee was of the view that a prisoner should be released, how was that acted upon? There must be a procedure to implement the Committee's views.

The Basque problem was not reflected in Spain's report, he said. "Please, I would like to know something about it from your point of view." The Committee received a great deal of documentation on the situation. What was the Government's view, and what impact did that problem have on implementation of the Covenant?

ECKART KLEIN, expert from Germany, said xenophobia was a societal phenomenon. Legal instruments had been described, but it was difficult to

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combat such societal attitudes by legal means alone. What was the Government's programme of action to address the problem? Were the programmes in the schools, in the universities, in the training of civil servants?

The report stated that the exercise of parental authority belonged to both parents in the case of legitimate children, he said. What was done with children born out of wedlock. Did the natural father also have parental authority? When the couple was living together unmarried, was parental authority reserved to the mother? What was the legal rule in such cases?

NISUKE ANDO, expert from Japan, said Spain was one of the few countries which submitted its reports in a timely fashion, which demonstrated the importance it attached to the Covenant. How could one prove that the motive in a case of assault was a difference in colour?

ELIZABETH EVATT, expert from Australia, said she was pleased that there were many cases in which the courts, at all levels, had cited the Covenant. What was the actual influence of the court in those cases? How had it been invoked? Spain had made great strides in recent years in advance the equality of women. Were there any specific programmes to encourage their participation in public life?

On the question of racism, she said that Spain's report cited the risk posed by inadmissible attitudes. However, it only cited legislation as a response. That was not enough. She asked for more information on educational programmes on intolerance, racism and xenophobia. Were non-governmental organizations involved in the preparation of reports for submission to the Committee?

TAMAS BAN, expert from Hungary, said the report made frequent references to the Committee's concluding remarks following Spain's third periodic report. That was a good -- and, unfortunately, unusual -- method. He drew attention to this year's Act on the legal protection of minors. Were the Committee's views regarding the punishment of children taken into consideration in the drafting of that Act? Was the new legislation on racist expressions preventive in nature, or had it been prompted by cases which had come before the courts?

DAVID KRETZMER, expert from Israel, said the Covenant made only one references to citizens, in the context of participation in the political process. Otherwise, it allowed no discrimination between citizens and non- citizens. However, there were sections in the Spanish Constitution which stated that "Spaniards are equal before the law". Clarification was needed on that issue.

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He said every member of the Committee would condemn the horrific acts carried out by some members of the Basque community. However, Spain's report was not clear on how the defining lines between Spain's "autonomous communities" were drawn. How did that apply, in particular, to the Basque community?

Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, said the Covenant was now part of Spain's domestic law as was the European Convention on Human Rights. Had there ever been a conflict in the Spanish courts between the application of the Covenant and of the Convention? If there was such a conflict, which would prevail?

LAUREL FRANCIS, expert from Jamaica, said he was very impressed with the implementation of the Covenant by the Spanish High Court. He questioned whether there might be more community involvement in addressing the problem of minority conflicts based on race.

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