HUMAN RIGHTS COMMITTEE COMMENDS PROGRESS OF SPAIN; COMPLETES CONSIDERATION OF FOURTH PERIODIC REPORT

21 March 1996

Press Release
HR/CT/458

HUMAN RIGHTS COMMITTEE COMMENDS PROGRESS OF SPAIN; COMPLETES CONSIDERATION OF FOURTH PERIODIC REPORT

19960321 Experts Stress Need for Implementation of International Covenant on Civil, Political Rights Even While Combatting Terrorism

The tremendous progress made by Spain in implementing the International Covenant on Civil and Political Rights was commended this afternoon, as the Human Rights Committee completed its consideration of that country's fourth periodic report on its compliance with the Covenant.

Nevertheless, Committee members stressed the need to ensure implementation of the Covenant in the context of Spain's efforts to combat terrorism. They also drew attention to such practices as incommunicado detention prior to a court appearance, and to implications of Spain's laws governing the permitted length of such detention.

Experts addressed such questions as whether those suspected of terrorism were allowed to choose their own lawyers and to meet with them in private. Clarifications were requested with respect to allegations that prisoners in terrorism cases in the autonomous regions had been held at great distances from their families. Citing charges of torture while in detention, members stressed the need for external oversight of measures taken by security forces.

In addressing issues raised by the experts, the Spanish delegation said that when allegations of ill-treatment in detention were received, the Committee should look at the source of such information. Terrorism relied on propaganda and used international bodies to transmit "a certain vision of things".

The representative of Spain cited a brochure of the ETA, which means "Basque Homeland and Liberty". The brochure, which would be distributed to the Committee, instructed its members to allege mistreatment whenever they were arrested. That was not to say that all such charges were false, but simply to indicate that a great deal of misinformation was being circulated.

Statements were made by the experts from France, United Kingdom, United States, Germany, Egypt, Australia, India, Venezuela, Hungary, Chile, Israel,

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Mauritius, Japan, Jamaica, Ecuador, Cyprus, Italy and Costa Rica. Speaking on behalf of Spain were the following members of its Ministry of Justice: Juan Luis Ibarra, Director General for Codification and International Legal Cooperation; and Javier Borrego, Government Counsel.

The Human Rights Committee will meet again at 10 a.m. Monday, 25 March, to review its follow-up on views it adopted in response to communications it had received alleging violations of the Covenant.

Committee Work Programme

The Human Rights Committee met this afternoon to continue 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). (For background information on the report, see Press Release HR/CT/456 of 20 March.)

Questions by Experts

CHRISTINE CHANET, expert from France, recalling a reference to "exceptional legislation", said it was not exceptional because it had been in force for quite some time and aimed at persons accused of terrorist acts. That legislation could cause problems regarding articles 9 and 14 of the Covenant. (The articles relate to the right to liberty and security and to equality before the courts.) For instance, people suspected of terrorism were not allowed to choose their own lawyers, rather they were assigned an attorney. She sought clarification on those matters.

She also asked about the issues of "ill treatment" and "torture", terms used by the Special Rapporteur of the Commission on Human Rights on torture, among others. She asked for clarification concerning cases of torture of persons suspected of terrorism, especially when they were confined by the Guardia Civil. It seemed that when higher officials were punished, punishment was not fully implemented, because they had special contacts. That amounted to impunity, she said, asking for comments.

Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, asked about problems concerning terrorist violence and the effect it had on the general population and the way of life of those living in Spain. What was done in Spain to protect the investigating magistrates and the trial judges that had to deal with those extremely delicate cases? he asked. Referring to an amendment of the Constitution that allowed for an extended period of detention before a person was brought before the court, he asked who applied for such extension. Was the person given the reasons for the extension? What were the legitimate reasons for that provision? Were those matters discussed in open courts? How could the judge take into account secret material, which usually contained reasons for extended periods of detention.

In the case of investigations of alleged terrorist offences, he said he did not understand how the Spanish law dealt with confessions. How were confessions allowed to be brought before the courts? He also asked about information on the way in which confessions might have been obtained. It had been said this morning that there was now in Spain a record of the custody of the person held in detention. Did the record include names or numbers of the people in charge of the investigation? he asked. If that was done and the

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record was made available to the court, it was never impossible to find out who was the officer concerned at a particular time during the investigation.

THOMAS BUERGENTHAL, expert from the United States, said the manner in which Spain had addressed the domestic implementation of human rights instruments, both in its constitution and through its courts, was revolutionary and set an example for other countries. What did it mean that the detained might not meet privately with his lawyer? Did the detainee have the right to reject a lawyer appointed by the bar association and ask for another lawyer to be appointed in his stead? How could Spain's detention regime be reconciled with Covenant principles?

He drew attention to a case in which two guards who had been convicted for torturing Basque prisoners had been pardoned. He understood that those two civil guards had both been promoted. If that was true, how did such a practice discourage similar acts? Had the case concerning the "Grupos Anti- terroristas de Liberación" (GAL) been subjected to a large-scale parliamentary inquiry?

He said the Committee's concern with some cases regarding ETA, which means "Basque Homeland and Liberty", should not be interpreted as condoning terrorist activities. Neither should it be interpreted as questioning that ETA was, indeed, a terrorist organization. Nevertheless, those concerned were entitled to being treated in a humane way in a democratic system.

Did safeguards exist to protect individuals about whom information was provided from the dissemination of false information to other countries?

EKHART KLEIN, expert from Germany, expressed concern about reports of mistreatment and torture, as well as about the very mild punishments which had been reported. More information was needed on the practice of temporary exclusion from the civil service. During such temporary exclusion, did those concerned have a legal claim to re-enter the civil service? What was the theory behind the concept of "incommunicado"? Why was it deemed indispensable in combating terrorism? How often was compensation paid for excessive detention?

OMRAN EL-SHAFEI, expert from Egypt, said many European countries were dealing with the re-emergence of racially discriminatory behaviour. Combating that phenomenon should be a joint effort. The Covenant invited States parties to prohibit incitement to discrimination, hostility or violence. The question of how to deal with alleged perpetrators of terrorist acts had been discussed. Spain's laws on suspension of the rights of detainees left the impression that they represented "permanent emergency legislation". Clarification was needed on that point.

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ELIZABETH EVATT, expert from Australia, joined in questions concerning exceptions to article 17. (The article relates to arbitrary or unlawful interference.) What were the legal criteria applied in making the decision on extended detention period? To whom might the detainee apply to review such decisions? Delay in trials had been an issue of concern over the years, she said, asking how that period was fixed. What criteria was applied for pre- trial detention? In what circumstances was there an inquiry on complaints of torture and who was represented? Concerning autonomous regions, she asked about prisoners and about prison assignments. There had been allegations that those involved in cases of terrorism were sent to prisons far from their families.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, sought further information on conscientious objectors, as there had been information about instances where people had not been able to leave the service if their objection was registered in the middle and not at the beginning of the service. He also sought further information on questions relating to incommunicado detention and about refugee status, including the waiting period before a person was granted refugee status. Was the report given to human rights organizations before its submission to the Committee?

MARCO TULIO BRUNI CELLI, expert from Venezuela, addressing the question of torture, said Spain had clearly incorporated the Covenant in its domestic legislation, as well as other human rights international instruments. That led to the conclusion that there was no torture in Spain; however, reports reaching the Committee stated that there were very serious incidents of torture in Spain, and that was closely linked to the question of impunity. When things get tough that type of punishment tend to enjoy the support of the community, sometimes leading to support of the death penalty, he noted, asking for comments.

TAMAS BAN, expert from Hungary, drew attention to the question of confession under duress. He sought clarification about how evidence was assessed by the trial court. It was commendable that Spain had measures to speed up court proceedings and to compensate those who were subject to lengthy trials. The recourse procedure allowed such victims of delay to ask the Supreme Court to expedite the proceedings. Did having such a separate procedure actually result in slowing down the process?

CECILIA MEDINA QUIROGA, expert from Chile, said there must be external oversight of the measures taken by security forces, a need that was highlighted by the practice of incommunicado detention. In such a case, the detainee was apparently sent to Madrid, regardless of where he was arrested. How could there be an amparo process in such a case. The detainee could not communicate freely with his lawyer prior to going to trial. That facilitated the possibility of torture. In addition, forensic physicians were not

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performing their duty of caring for the detainees physical and mental health. Their role was simply to determine whether prisoners were fit to be sent to jail.

Addressing the question of impunity, she cited a case in which repeated allegations of ill-treatment and torture dated back to 31 January 1992. How could such a strong case of repeated torture be ignored? That was incompatible with the Covenant and with the State which Spain had become.

DAVID KRETZMER, expert of Israel, associated himself with all the questions that had been posed relating to torture, control of those involved in interrogation and the practice of incommunicado detention. The Covenant provided that a person had a right to defend himself in person or through legal assistance. In Spanish law, if a person dispensed with the services of a lawyer, could he defend himself?

RAJSOOMER LALLAH, expert from Mauritius, also sought further information on the case referred to by the expert from Chile. For suspected murderers and terrorists, the Covenant required that they had all the guarantees, and apparently that was not the case in Spain. There was a problem, clearly, and maybe a solution should be sought, as had been the case in Northern Ireland.

JULIO PRADO VALLEJO, expert from Ecuador, said that in Latin America, Spanish society was seen as very respectful of human rights. The Spanish authorities had taken a lot of measures concerning torture which were very commendable. However, the Committee had received reports of torture in Spain. Thus, it seemed that while there was legislation against torture, the perpetrators of torture remained unpunished. That situation could not go on because it was not in accordance with the Covenant and also because it destroyed the democratic image of Spain. Quoting from a report of an organization which had visited prisons in Spain, he said there was information that those perpetrating torture used masks so they would not be recognized. There was something very wrong in that.

NISUKE ANDO, expert from Japan, also sought information on conscientious objectors, noting that there was an amendment to the legislation which had resulted from the increase in the number of objectors. He asked for data on the application of that amendment.

LAUREL FRANCIS, expert from Jamaica, said Spain's delegation had cited some 50 charges of torture against the security forces, so it was aware of the problem. Spain had a generally excellent record in human rights. Would it not be advisable to "engage a public eye" on the phenomenon of official torture, through the use of a state-of-the-art technology?

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Response by Spain

JUAN LUIS IBARRA, of the Ministry of Justice of Spain, asked the Committee to look into the sources of the information which had been provided to it. Terrorism relied on propaganda and used international bodies to transmit "a certain vision of things". The reports which had been cited were, in some cases, allegations of mistreatment and torture.

He said an ETA brochure would be distributed to Committee members. It instructed its members to allege mistreatment whenever they were arrested. Committee members should investigate the extent to which such charges were lifted directly from that manual. He was not saying that all such charges were false, but simply that there was a great deal of misinformation in that area. The Spanish Committee for the Prevention of Torture provided the most reliable information on the issue.

The Spanish Criminal Code was not emergency legislation, he said. It had governed criminal conduct in Spain since the last century. The Criminal Code listed the rights of detainees. Some of those rights were limited when there was a suspicion of organized criminal activity or terrorism.

When unusual measures were taken, they were decided upon by a judge, he said. Such decisions could never be reviewed by the executive branch or by the security forces. In a July 1994 case which had been cited, it was true that the justice administration had not acted quickly. However, there were other factors which needed to be considered in that case.

Responding to a question on what was being done to improve the human rights situation in Spain, he said there was a registry of detainees and a registry of custody, and he would be happy to provide a copy of both to the Committee. As to a question on the implementation of criminal law in investigations of armed bands and acts committed by terrorists, he said the question of selection of attorney was decided by the bar association and not by the Government. That was a temporary measure because there were attorneys who were accused of terrorist practices, of transmitting information to detainees. That was the reason for instituting legal measures.

It was up to the judiciary to ensure sentences were carried out, he continued. The legislation had tried to avoid short, light prison terms. The King was the only one who could pardon a person.

As for what was done to protect judges dealing with organized crime, he said they did not enjoy special protection. Judges or policemen could in no way disguise themselves. It was not true that police officers were allowed to use hoods or masks. It was not true that legislation allowed that practice.

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Continuing, he said that, since 1978, the Constitution guaranteed that confessions lacked any legal value unless they were repeated before the judge and in the trial. Confessions obtained in detention centres were not, in and of themselves, considered to be proof. Prisoners could meet privately with their lawyers, even when their right to choose a particular lawyer had been removed.

He said there had been an investigation by Parliament of the matter which had been raised by one expert. However, that investigation had been cancelled as it had represented an overlapping of functions between Parliament and the decisions of a judge. A person summoned before a parliamentary committee was required to speak the truth. However, he was not required to speak in a prosecutorial proceeding. Parliamentary committees therefore generally preferred to wait until such proceedings were completed.

Responding to questions raised by the experts, JAVIER BORREGO, Government Counsel of Spain, said the option of conscientious objection was available in his country. Two members of the Spanish Navy who deserted had alleged violations of various Covenant provisions and their case had been thrown out. The decisions of judges in the penitentiary system were judicial decisions and were subject to all the usual recourses. Criteria employed regarding the length of a trial had been endorsed by the European Commission of Human Rights.

He said there was a maximum length of temporary confinement, which was based on the nature of the alleged crime and the presence of such factors as risk of escape and danger of collusion. When a trial extended beyond a certain duration, the plaintiff could appear before the Constitutional Courts, after which the delay was eliminated. The report of the Human Rights Committee, once published, was put at the disposal of non-governmental organizations. A defendant was permitted to conduct his own defence in court if he so decided, but only if a lawyer was present. Denial of asylum applications could be appealed, effectively cancelling an expulsion order.

Final Observations

Mr. PRADO VALLEJO, expert from Ecuador, said that although the delegation had said there was no torture in Spain, that information was available in a report of Amnesty International of March 1996. He gave some details of the report.

Mr. BUERGENTHAL, expert from the United States, said that the discussion might have given the erroneous impression that human rights were being violated in Spain. That was not true. The country had an impressive record. There were some problems with terrorist organizations, but that should not overshadow the impressive progress made in human rights. He supported the

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innovation in the criminal code of including hate crime, given the transnational nature of that crime. He thanked Spain for the candid presentation.

Mr. KRETZMER, expert from Israel, said the Spanish reply had been very impressive. He agreed that caution should be exercised regarding reports on torture. However, the information available showed a pattern by some investigating staff and not isolated incidents. That showed an institutional problem. Therefore, an institutional measure should be adopted in that regard to punish those involved and for the punishment be carried out. It was unfortunate that the transparency found in the oral replies had not been present in the written report. He expressed the hope Spain would be able to fight terrorism without breaching the Covenant's provisions.

Mr. PRADO VALLEJO, expert from Ecuador, said the delegation had replied with good will. He expressed satisfaction with the abolition of the death penalty. Information about racial discrimination, however, was absent in the report, although the oral responses had been helpful. The Spanish Government must investigate those accused of mistreating detainees.

ANDREAS V. MAVROMMATIS, expert from Cyprus, said he was very impressed by the performance of the delegation. The progress of Spain since it had become a democratic country was amazing. There was a problem with torture and the handling of the terrorist secessionist activities, which were indeed very difficult to handle. It was time to take radical measures to eradicate that last cause of complaints against the country.

He said that the time that terrorists could be in custody was a matter of concern -- 72 hours or five days was a long period. That should be examined and discipline, juridical and administrative measures would help. The Committee did know that terrorists made a concerted effort to exaggerate matters related to torture, but if the Committee ignored those allegations it would not be doing its work. The human rights situation in the country was satisfactory, he concluded.

Mrs. MEDINA QUIROGA, expert from Chile, expressed satisfaction with the performance of the delegation and the respect it had for the Committee and its questions.

Mr. KLEIN, expert from Germany, called on Spain to give attention to education, as that was the only way to take care of hostile behaviours in society. Legislation concerning conscientious objection should be brought in line with the rules of the Covenant.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, complemented the delegation and Spain for its human right record. However, he expressed

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concern with allegations of torture and the detention of persons accused of committing torture. There was credible evidence of torture and ill-treatment and that must be investigated, because it might lead to impunity. He had also had problems with regulations concerning incommunicado detention. It was not enough to make the report public after it had been considered by the Committee.

Mr. ANDO, expert from Japan, said that concerning torture, practices could not be changed in a day or two. The questions had been asked in order to know the facts. He was not satisfied with the reply on conscientious objections. Spain was making progress in human rights. He hoped that progress would be made in practice, not only in law.

Lord COLVILLE, expert from the United Kingdom, said constitutions and laws were one thing, and what happened with individuals another. The latter was what human rights was all about. He thanked the delegation for the information provided.

Mrs. CHANET, expert from France, thanked the delegation. Spain was a true democracy and a great deal had been done that put Spain in the forefront of the Optional Protocol on the abolition of the death penalty. However, keeping someone incommunicado for five days was not in keeping with the Covenant, nor was not being able to choose an attorney of his or her choice. The incidents of torture must be eliminated. Everything must be done to train law enforcement officials.

FAUSTO POCAR, expert from Italy, joined in the expression of admiration. He added that the fight against terrorism must be carried forward while respecting the rights protected in the Covenant. He congratulated Spain for having abolished capital punishment.

LAUREL FRANCIS, expert from Jamaica, congratulated the performance of the delegation. The allegations on torture should be seen as a red light flashing before the country.

ELIZABETH EVATT, expert from Australia, joined others in congratulating the delegation. She stressed the need for transparency in the report, which should have dealt with torture and terrorism in Spain. She praised the progress made on the situation of women in Spain.

Mr. IBARRA, of the Ministry of Justice and Interior of Spain, said he believed in law and he believed in human rights law. Progress could only be made when one travelled from uncertainties to answers. Spain had no special legislation regarding terrorism. Anyone who assumed there was such emergency or special legislation in Spain was mistaken. Terrorist acts were prosecuted under the provisions of the Criminal Code. There should be no doubt about

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that. The issue of conscientious objection was an important one in Spain. The youth in Spain felt strongly about that right being respected.

Statement by Committee Chairman

FRANCISCO JOSE AGUILAR URBINA, expert from Costa Rica and Committee Chairman, said there had been a fruitful dialogue on Spain's periodic report. He congratulated Spain on the progress it had made over the past 20 years, going from 40 years of dictatorship to become an exemplary modern democracy. He cited such developments as abolition of the death penalty and actions taken against the crime of racial discrimination.

Nevertheless, concern remained with regard to the question of torture, he said. One must act with caution in the battle against terrorism. Those suspected of terrorism must be treated like any other detainee. No quarter should be given to impunity. He said the problem of racial discrimination was not specific to Spain. However, Spain had historically been a melting pot, and there should be better knowledge of that within Spain itself.

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