GE.14-20376 (E) 031214 041214
Human Rights Council
Working Group on the Universal Periodic Review Twenty-first session
19–30 January 2015
National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21*
Spain
* The present document has been reproduced as received. Its content does not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations.
A General Assembly Distr.: General
10 November 2014 English
Original: Spanish
I. Introduction and methodology used to prepare the national report
1. Spain is now a firmly established democracy, thanks to the forces of progress at work during the transitional period in the 1970s and the adoption in 1978 of the current Spanish Constitution. The subsequent process of integration into the European Union and other regional organizations, the ratification of the vast majority of international human rights treaties, the applicable legislative framework, and active participation in various forums to uphold and promote human rights have transformed Spain into a country that is not only deeply committed to human rights but also aware of the challenges it faces. The international economic and financial crisis has presented new challenges in the sphere of human rights, particularly with regard to economic, social and cultural rights. The policies adopted in this context have entailed sacrifices for Spanish citizens but have attempted as far as possible to preserve the protections afforded to their rights. The fledgling but clear economic recovery will eventually make it possible to restore social protection measures and measures to assist the most disadvantaged groups affected by the crisis.
2. Since the first universal periodic review of Spain in 2010, the promotion and protection of human rights at the international level has continued to receive high priority in Spanish foreign policy. The country has provided political and financial support to the Office of the United Nations High Commissioner for Human Rights, and it actively supported the establishment of the Human Rights Council – of which Spain was a member from 2010 to 2013. Spain believes that the universal periodic review has proved to be of great value in promoting and protecting human rights throughout the world and that it deserves continued support. Spain maintains an open and standing invitation to all United Nations special rapporteurs who wish to visit the country.
3. The drafting of this national report was coordinated by the Human Rights Office of the Ministry of Foreign Affairs and Cooperation, in accordance with the guidelines adopted by the Human Rights Council. All ministries with relevant competencies participated in the drafting of the report, as did the Office of the Deputy Prime Minister. In May and September 2014, coordination meetings were held with civil society organizations, which also received a copy of the draft report and were invited to comment on it. The Ombudsman was also kept informed about the drafting process.
4. This national report includes information on the follow-up given to the recommendations accepted in 2010 as well as information on other aspects of human rights in Spain that were not addressed in the 2010 recommendations. In 2012, Spain submitted an interim report on the implementation of the recommendations accepted in 2010.
II. Legislative and institutional framework
A. Signature and ratification of international conventions
5. Since May 2010, Spain has ratified the following international instruments: the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights;
the Optional Protocol to the Convention on the Rights of the Child on a communications procedure; the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence; and the Convention on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health.
B. Improvements in the institutional framework
6. While the institutional framework remains largely unchanged since the last universal periodic review, there have been two noteworthy developments in the field of human rights.
Hate crime and discrimination departments in all provincial prosecutor’s offices in Spain
7. One of the most prominent changes that have taken place in Spain in recent years has been the establishment of a hate crime and discrimination department in each of the provincial prosecutor’s offices in Spain. This institutional strengthening has enabled the justice system to take more decisive action in response to these types of crimes. A national council of victims of hate crimes has also been established.
Improved coordination in respect of human trafficking
8. The establishment of the post of National Rapporteur on human trafficking also deserves special mention, given that the Rapporteur has played an important role in improving coordination among the various institutions competent to deal with human trafficking issues — an inter-agency coordination mechanism on human trafficking was also established in June 2012 — and has helped to encourage better international coordination, specifically within the European Union.
C. Improvements in the legislative framework
Reform of the Criminal Code of 2010 and the new draft reform
9. In 2010, a major reform of the Spanish Criminal Code was adopted. The reform amended, inter alia, offences against the international community1 and the offence of human trafficking, which was classified for the first time as a separate offence. It also expressly added trafficking for purposes of sexual exploitation and granted special protection to child victims. In addition, it increased the penalties for environmental offences, added the offence of trafficking in human organs and illegal organ transplant, expanded the aggravating circumstances related to discrimination and introduced new articles aimed at providing increased protection for minors against sexual abuse, sexual exploitation, prostitution and child pornography.
10. Proceedings are under way to adopt a new bill amending the Criminal Code that, inter alia, criminalizes forced marriage, strengthens protection for victims of gender-based violence,2 amends the offence of sexual exploitation and forced prostitution, pays special attention to the most vulnerable victims of trafficking and strengthens protection for minors from criminal acts against their sexual freedom. In response to the recommendations received from the Working Group on Enforced or Involuntary Disappearances, the Committee on Enforced Disappearances and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, enforced disappearance has been classified as a separate offence in the reformed Criminal Code.
Elimination of discrimination on the basis of gender
11. In this regard, particular mention should be made of the reform of the criminal offence of human trafficking,3 which has been classified as a particular offence against the person distinct from the offence of smuggling of migrants, and of the adoption of the Strategic Plan for Equality of Opportunity 2014–2016, which will be implemented through the Special Plan for Equality between Women and Men in the Workplace and against Wage
Discrimination 2014–2016, the Action Plan for Equality between Women and Men in the Information Society and the Plan for the Advancement of Rural Women.
Combating discrimination, racism, xenophobia and related intolerance
12. The reform of the Criminal Code includes an amended list of types of behaviour that encourage, promote or directly or indirectly incite hatred, hostility or discrimination against a group, part of a group or an individual, with a view to strengthening existing legislation in this area. So as to focus specifically on the integration of immigrants, the second Strategic Plan for Citizenship and Integration 2011–2014 has been adopted and the Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance has been adopted and implemented.
III. Promotion and protection of human rights in Spain
A. Human Rights Plan (recommendations 84/R.1 and 84/R.5)
13. In 2012, the Government of Spain conducted an assessment of the first Human Rights Plan. The final assessment was registered in parliament on 28 December 2012. Since then, the Government of Spain has compiled information on the human rights situation in the country, while at the same time launching various specific plans and measures that have had a significant impact on human rights. These plans and measures were implemented in response to the serious consequences of the economic crisis, which has been the focus of the Government’s efforts since the start of the legislative session.
14. During this period, various sectoral plans have been adopted, and progress has been made in the implementation of others, including, for example, the National Strategic Plan for Children and Adolescents, the Strategic Plan on Equality of Opportunity, the National Strategy for the Inclusion of the Gypsy Population, the Spanish Strategy on Disability, the Master Plan for Spanish Cooperation,4 actions to provide comprehensive support to victims of terrorism, the Business and Human Rights Plan, the National Action Plan for Social Inclusion and the Corporate Social Responsibility Plan. In addition, specific new steps are being taken, with priority given to groups such as families, young people and older persons, and in particular those facing poverty and social exclusion.
15. With a view to implementing these sectoral plans and gathering information on the human rights situation in Spain, the Government is working to establish a human rights strategy with specific objectives for the coming years.
B. Elimination of discrimination on the basis of gender
Policies to promote equality of opportunity, particularly in the workplace (recommendations 84/R.9, 84/R.10, 84/R.11, 84/R.12 and 84/R.13)
16. Since 2010, many legislative improvements have been made concerning equality of opportunity for women and men. The following are some of the pieces of legislation that have been adopted: Royal Decree Law No. 11/2013 on protection for part-time workers and other urgent economic and social measures; Act No. 27/2011 amending the Social Security Act in respect of social and economic benefits for women; the consolidated text of the Act on the Regulation and Supervision of Private Insurance, which was amended with a view to eliminating gender differences concerning insurance premiums and benefits; Act No.
14/2011 on Science, Technology and Innovation, which sets as one of its overall objectives the promotion of the inclusion of a gender perspective as a cross-cutting category in this
field; and Act No. 3/2012 on urgent measures to reform the labour market, which provides for conditional assistance to encourage the recruitment of women.5
17. The Strategic Plan on Equality of Opportunity 2014–2016 sets out the objectives and priority actions to be taken to eliminate any remaining gender-based discrimination and to achieve equality of opportunity for women and men. Its three main objectives are to: (i) reduce the inequalities that still persist in the areas of employment and the economy, with a special focus on the pay gap; (ii) support a work-life balance and joint responsibility; and (iii) eliminate violence against women just because they are women. In addition, it also has the following three objectives: (iv) to enhance women’s participation in the political, economic and social spheres; (v) to promote equality of opportunity for women and men through the education system; and (vi) to fully integrate the principle of equality of treatment and opportunity in all government policies and actions.6
18. The policies adopted in the area of employment and participation in economic activity include the following: measures to integrate women who have difficulty finding work into society and the labour market; measures to promote self-employment and entrepreneurship among women; measures to promote equality plans in small and medium- sized businesses; the awarding of the distinction “Equality in Business”; the provision of access for women to decision-making positions in business and the continuous monitoring carried out by the Inspectorate of Labour and Social Security.
19. At the same time, other actions have been taken including measures to promote a work-life balance and joint responsibility in family matters, the teaching of equality education programmes in schools, actions aimed at incorporating the principle of equality of treatment and opportunity in public policies and in the public sector, interventions against sexist advertising through the Women’s Image Observatory together with other actions to combat persisting stereotyped attitudes about the roles and responsibilities of women and men and the operationalization of the Council on Women’s Participation.
Combating gender-based violence (recommendations 84/R.7, 84/R.8, 84/R.30, 84/R.31, 84/R.32, 84/R.33, 84/R.34, 84/R.35, 84/R.36 and 84/R.37)
20. Among the legislative measures taken since 2010, one that stands out is the amendment of article 88 of the Criminal Code through Organic Act No. 5/2010, which allows for penalties in the form of community service or tagging in lieu of custodial sentences. In the case of perpetrators of gender-based violence, such sentences must be served in a location that is different and separate from the victim’s place of residence. In addition, the system of fees charged by the justice system was reformed through Royal Decree No. 3/2012, which exempts victims of gender-based violence from paying fees, while the free legal aid system was reformed to ensure that such victims are entitled to free legal aid regardless of their income level. In addition, Organic Act No. 10/2011 amended article 31 bis of Organic Act No. 4/2000 on the rights and freedoms of foreigners in Spain and their social integration, so as to enhance measures to protect foreign women victims of gender-based violence who choose to file a complaint against the perpetrator.7 Royal Decree No. 1710/2011, for its part, amended the immigration regime for citizens of the European Union and the European Economic Area by allowing victims of gender-based violence to retain their residence permits under exceptional circumstances in the event of an annulment of their marriage, divorce or cancellation of a registered partnership. The reform of the Criminal Code currently under way criminalizes any action taken by a person accused or convicted of an offence of gender-based violence to render ineffective the remote tracking system installed to monitor the implementation of precautionary measures or restraining orders. The rights of women victims of gender-based violence are set out in the guidelines available at http://www.msssi.gob.es/ssi/violenciaGenero/Recursos/
GuiaDerechos/home.htm.
21. In July 2013, the Government of Spain adopted the National Strategy for the Elimination of Violence against Women 2013–2016.8 The strategy includes measures aimed at awareness-raising, prevention, consciousness-raising and detection, as well as measures to provide assistance, protection and support to women victims of gender-based violence, paying special attention to children and to women who are at greater risk, namely women with disabilities, women living in rural areas and foreign women. In order to achieve the objectives set out in the National Strategy, improvements have been made to the training provided to State security forces and law enforcement agencies and to the methods used to evaluate public policies.9 In addition, the various possible forms of violence — such as trafficking in women and girls for sexual exploitation, female genital mutilation and forced marriage — are being brought more into the public eye.
22. The above-mentioned National Strategy has served as the framework within which the following specific actions have been taken: promoting institutional campaigns;
emphasizing collaboration among the various social and economic stakeholders in both the public and private sectors; taking steps in various areas such as sports, culture, health and new technologies; offering specific awards; and taking measures to raise public awareness about trafficking in women and girls for purposes of sexual exploitation.10
23. Eliminating violence against women is also a priority of the State security forces and law enforcement agencies.11 Two protocols have been developed in this regard – one on coordination, collaboration and referral among professionals dealing with domestic and gender-based violence and another on the system for the remote tracking of the implementation of restraining measures and penalties in cases involving gender-based violence.12 The State security forces and law enforcement agencies possess a network of specialist care providers comprising teams for women and minors, Civil Guard criminal investigation police, family services, and groups for women and minors within the National Police Force. In addition, the Upgrading and Specialization Centre, which is part of the Training and Proficiency Division of the National Police and Civil Guard, offers training courses addressing gender-based violence. The Basic Guide to Psychological First Aid in Cases of Gender-based Violence has been prepared in order to provide better care for victims. There is also an integrated system for monitoring cases of gender-based violence in the country, which includes a subsystem focusing on victims who have died as a result of gender-based violence.13 Between 2010 and 2014, several revisions were made to the risk assessment forms used by the police, and it was decided that a new tool would soon be launched to create and send follow-up warnings or alerts triggered by the continuous monitoring of changes in the level of risk faced by victims.
Combating trafficking for purposes of sexual exploitation (84/R.38, 84/R.39, 84/R.40, 84/R.41, 84/R.42, 84/R.43, 84/R.44, 86/R.24 and 86/R.25)
24. Efforts to combat trafficking for purposes of sexual exploitation have also received special attention since 2010.14 In particular, as mentioned above, the post of National Rapporteur on human trafficking was established on 3 April 2014.
25. The offence of human trafficking was criminalized in article 177 bis of the Criminal Code through Organic Act No. 5/2010, in which it was classified as a particular offence against the person distinct from the offence of smuggling of migrants.15 It is a crime of intent and is committed when the act is carried out for purposes of exploitation using any means that would nullify the victim’s consent.16 Exploitation, if it occurs, constitutes an offence separate from that of human trafficking. The crime of sexual exploitation and forced prostitution is regulated by article 188 of the Spanish Criminal Code, and sentences for that offence and for the offence of trafficking may be served consecutively. The aforementioned reform of the Criminal Code included an amendment to the classification of the offence of sexual exploitation and forced prostitution.
26. Another reform under way aims to improve the procedures used to identify victims and to meet the special needs of child victims of trafficking.17 The Framework Protocol for the Protection of Victims of Trafficking also addresses the particular situation of child victims. Organic Act No. 10/2011 amended article 59 bis of Organic Act No. 4/2000 on the rights and freedoms of foreigners in Spain and their social integration, so as to enhance protection for foreign women in an irregular situation who are potential victims of trafficking and to encourage them to cooperate with the authorities in the investigation of trafficking offences.18 Lastly, there is the Integrated Plan against Trafficking for Purposes of Sexual Exploitation 2009–2012, the second version of which will be adopted in 2014, and the Framework Protocol for the Protection of Victims of Human Trafficking was adopted on 28 October 2011. The reform of the Criminal Code will also include the criminalization of forced marriage.19
27. Generally speaking, police action is guided by the Protocol for the Protection of Victims of Trafficking and the Framework Protocol for the Protection of Victims of Human Trafficking. The Police Action Plan to Combat Human Trafficking for Purposes of Sexual Exploitation was submitted in April 2013. The Civil Guard has also included efforts to combat trafficking as one of the main objectives in its Strategic Plan 2013–2016. In order to increase access to the National Police Force, the e-mail address [email protected] has been created, and a section entitled “public participation” has been added to the Civil Guard’s official website. The role played by the Intelligence Centre against Organized Crime, which also manages the BDTrata database, should likewise be noted.
28. International cooperation has been intensified, as called for in the Integrated Plan against Trafficking for Purposes of Sexual Exploitation 2009–2012. In particular, Spain has actively participated in the European Union policy cycle to combat organized crime by drafting operational action plans for the Serious and Organised Crime Threat Assessment.
International cooperation with INTERPOL, EUROPOL, EUROJUST and FRONTEX has also been strengthened.
C. Discrimination, racism and xenophobia (recommendations 84/R.7, 84/R.14, 84/R.18, 84/R.20 and 86/R.16)
Strengthening the legislative and institutional framework (recommendations 84/R.15, 84/R.16, 84/R.18, 84/R.17 and 86/R.22)
29. One of the objectives of policies in this area in recent years has been to strengthen domestic law to ensure better protection for groups who are discriminated against on grounds of ethnicity, national origin, gender, sexual orientation or identity, disability, religion or beliefs and political or ideological views. To this end, acts of incitement to hatred and violence against groups or minorities are being reviewed as part of the aforementioned ongoing Criminal Code reform.20 The Consolidated Act on the Rights of Persons with Disabilities and their Social Integration contains definitions of direct, indirect and multiple discrimination and of discrimination by association or harassment.
30. As mentioned previously, Hate Crimes and Discrimination Departments21 were established in all provincial public prosecutor’s offices in March 2013 — similar departments had been set up earlier in the public prosecutor’s offices of Barcelona, Madrid and Seville — and a court prosecutor was appointed as national coordinator.
Policies on discrimination, racism and xenophobia (recommendations 84/R.17, 84/R.19, 84/R.20, 84/R.46, 86/R.17 and 86/R.18)
31. The Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance22 was adopted on 4 November 2011. It focuses in
particular on the most vulnerable persons and sets forth objectives and measures for education, employment, health, the media, the Internet, sports and awareness-raising. More broadly, a map of discrimination in Spain has been developed to improve data collection and the production of official statistics on incidents and offences involving discrimination in general. In 2012 and 2013, 698 programmes in the areas of awareness-raising, education, employment, the media and victim protection received total subsidies of 19,594,509 euros.23 The Master Plan for Coexistence and Improved Safety in and around Education Centres was adopted in 2013 and the Training Project for the Prevention and Detection of Racism, Xenophobia and Related Forms of Intolerance in Schools is under way. In the field of sports, the Comprehensive Plan on Physical Activity and Sports and the Manifesto for Equality and Participation of Women in Sports have been adopted, among other measures.
32. As a co-sponsor, Spain has been supporting the United Nations Alliance of Civilizations since 2010.24 It also supports annual events marking World Interfaith Harmony Week and co-founded the King Abdullah Bin Abdulaziz International Centre for Interreligious and Intercultural Dialogue.
Improvement of the national statistics system (recommendations 84/R.18, 84/R.17, 84/R.19, 84/R.20 and 84/R.21)
33. The Crime Statistics System was reformed in 2011, pursuant to the collaboration agreement on information systems for racist and xenophobic incidents. One of the changes was the incorporation of the extensive and universal definition of racism and xenophobia suggested by the European Commission against Racism and Intolerance (ECRI). The training of State security forces has also been improved, taking advantage of synergies resulting from the FIRIR project on training in the detection and registration of racist and xenophobic incidents. A training handbook on the subject has been designed for security forces, leading to better oriented investigations.25 It takes up articles 174 and 175 of the Criminal Code regarding offences perpetrated by an authority or public servant.26 A specific protocol for State security forces is being formulated to deal with such incidents.
Data on racist and xenophobic incidents were published in the Journal of Statistics of the Ministry of the Interior for the first time in 2012. A complete report on hate crimes committed in 2013 has also been published.27
Assistance to victims of discrimination on grounds of racial or ethnic origin
34. In order to provide better protection for victims, a department has been set up to assist victims of discrimination on grounds of racial or ethnic origin,28 and there are plans for a website to provide institutional support to victims of racism.
The specific case of the gypsy population (recommendations 84/R.24 and 86/R.27) 35. Actions taken in respect of the gypsy population are part of the National Strategy for the Social Inclusion of the Gypsy Population in Spain (2012–2020)29 — which includes quantitative objectives to be reached by 2020 in each of the four key areas for social inclusion (education, employment, housing and health) and intermediate goals for 2015 — and of the aforementioned Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance. Objectives in the area of education include increased preschool enrolment, the achievement of universal education and higher academic attainment at the primary level and are supplemented by specific actions. The following projects have received support: the transnational project “Roma families get involved”, the monitoring and support programme for gypsy students in compulsory primary and secondary education and the special classrooms under the Promociona programme run by the Fundación Secretariado Gitano.30 The Ministry of Health, Social Services and Equality provides annual subsidies to an average of 130 programmes, run by
23 NGOs across 68 towns, totalling a multi-year average (2010‒2013) of 5,489,780.27 euros.31
D. Immigration, asylum and refugee status
Immigrant rights (recommendations 86/R.27, 84/R.23, 84/R.50, 84/R.51, 84/R.52 and 84/R.53)
36. Organic Act No. 4/2000 on the rights, freedoms and integration of foreigners has been amended on a number of occasions.32 The amendment introduced through Organic Act No. 2/2009 guarantees to all the full enjoyment of their fundamental rights and the gradual enjoyment of the rest of their rights according to the length of lawful residency in Spain. Organic Act No. 4/2013 established an enhanced protection system in the event of the expulsion of individuals benefiting from international protection and who come under the long-term residency regime.
37. In addition to the measures described in section C on discrimination, racism and xenophobia, one of the main steps taken for immigrant integration is the adoption of the Second Strategic Plan on Citizenship and Integration (2011–2014), whose purpose is to coordinate the policies of various public entities. The focus has been on social coexistence and the promotion of equal access for immigrants to social services, thus improving the social inclusion of diverse population groups at risk of social exclusion. Moreover, the Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance also broaches discrimination in access to health care, housing and employment. The chief objectives in the latter domain are to reduce job insecurity and the segmentation of the labour market, to combat irregular recruitment and labour exploitation and to promote good quality employment. To this end, awareness-raising programmes to encourage equal treatment and non-discrimination in the labour market and programmes on managing diversity in the workplace33 are under way, and tailored social and employment integration plans are available. Under general labour law, resident foreigners have the same labour and social security rights and obligations as Spanish workers.
38. The Strategic Plan on Citizenship and Integration includes a financial instrument, namely the Support Fund for the Reception and Integration of Immigrants. From 2005 to 2011, it was allocated 983 million euros. Although it has not received any budgetary appropriations since the 2012 fiscal year, the Government intends to allocate it funds as soon as the budgetary situation allows.
39. There are also programmes on humanitarian assistance for newly arrived immigrants, on the reception and integration of immigrants, especially in areas with a large immigrant population, and on voluntary return. A public network of migration centres34 has been set up, in addition to the network of asylum seeker reception centres and the humanitarian assistance provided through NGOs funded by the Ministry of Employment and Social Security.
Specific protection for migrant children (recommendations 84/R.49, 84/R.54 and 86/R.34)
40. Care of unaccompanied migrant children is covered in article 35 of Organic Act No.
2/2009 on the rights, freedoms and social integration of foreigners, which stipulates that, if the age of undocumented foreigners cannot be clearly established, “they shall receive swift and appropriate assistance from the competent child protection services, in keeping with provisions on the legal protection of minors, and the case shall be brought to the immediate attention of the Public Prosecution Service, which, in collaboration with the relevant health institutions, shall conduct the necessary tests on a priority basis to determine their age”.
Furthermore, Royal Decree No. 557/2011 provides that independent child protection services should be informed in such cases. In order to improve coordination among them, the Attorney General’s Office issued opinion No. 1/2009 on aspects of inquiries into the age of unaccompanied foreign minors and the findings of the meeting of prosecutors specialized in minors and foreigners, held on 20 April 2010. A framework protocol for unaccompanied foreign children has been adopted.35
The right to asylum and subsidiary protection (recommendations 86/R.28 and 86/R.30)
41. International protection is regulated under Act 12/2009 and a new implementation regulation is being developed.36 Articles 5, 18, paragraph 1 (d), and 19, paragraph 1, of the Act set forth the principle of non-refoulement, which is also taken up in the current regulations and the draft regulations. Statutory guarantees with regard to asylum seekers and subsidiary protection claimants have been enhanced in recent years.37 Relevant programmes include reception and integration programmes for asylum seekers, refugees and recipients of international protection and, since 2011, annual programmes for resettlement in Spain.
42. Although provisions on international protection do not recognize trafficking in persons as grounds for prosecution as such, in practice, and in keeping with the interministerial Protocol on the Protection of Trafficking Victims, the Asylum and Refugee Office considers all claims for international protection individually, regardless of whether or not the claimant is a trafficking victim, and notifies the National Police of any cases in which there is evidence of a trafficking offence.
Migrant detention centres
43. Operating and internal regulations for migrant detention centres were adopted in March 2014.38 Guarantees include the obligation to obtain judicial authorization before detaining a person in such centres, the right of detainees to contact NGOs that provide protection to migrants, the right of NGOs to visit the centres and the immediate release of migrants held by the administrative authorities as soon as the circumstances that warranted their detention are no longer relevant. The Public Prosecution Service has the authority to visit migrant detention centres and request from them any information it deems necessary.
Situation in Ceuta and Melilla
44. The cities of Ceuta and especially Melilla have been under extraordinary migratory pressure in recent months, owing to large-scale assaults on perimeter fencing.39
45. Ceuta and Melilla have temporary migrant reception centres that provide basic social services and other specific services40 to migrants in an irregular situation, asylum seekers and international protection claimants. They also have an information protocol for asylum seekers. The centres are open facilities; individuals are free to choose whether or not to stay in them.
46. The centre in Ceuta has a capacity of 512 people, while the one in Melilla can accommodate 480. However, as a result of the aforementioned migratory pressure, the centre in Ceuta is over capacity, with 638 residents, and the one in Melilla is almost three times over capacity, with 1,434 residents,41 making it necessary to transfer migrants from these two cities to continental Spain.
47. In response to the extraordinary migratory pressure facing Ceuta and Melilla, the European Commission has pledged a package of emergency measures totalling 10 million euros.
E. Torture and ill-treatment (recommendations 84/R.29, 84/R.26 and 86/R.21)
Prevention of torture and ill-treatment (recommendations 84/R.2 and 84/R.28)
48. The Inspectorate for Security Personnel and Services is the body responsible both for inspecting and evaluating the services, centres and central and peripheral units of the police and Civil Guard directorates-general and the manner in which members of both forces perform their duties. Instruction No. 12 on the conduct expected of members of the State Security Forces was adopted in 2007 to protect the rights of detainees and persons in police custody. The National Police and the Civil Guard also have internal disciplinary rules whereby officers who subject detainees to any form of degrading or humiliating treatment are severely punished. In order to enhance protection in this area, human rights information sessions are provided to the police, prison administration staff, the judiciary, State attorneys and forensic doctors.
49. In November 2009, the function of national torture prevention mechanism was assigned to the Ombudsman.42
Full investigation of cases of torture and ill-treatment (recommendations 84/R.27 and 86/R.22)
50. In recent years, the Constitutional Court has adopted various decisions — that were reissued in decision No. 53/2010 — requesting all judges and courts to step up investigations into reports of ill-treatment by the police. It also specified what aspects should be taken into consideration during investigations, including the high likelihood that evidence in this type of offence will be sparse and the presumption, for investigative purposes, that any injuries detainees exhibit at the end of their detention and which they did not have prior to it may be attributed to those in whose custody they were held. In July 2011, the Government adopted the Criminal Procedure Bill, which reduces from eight to three the number of hours within which lawyers must report to police stations and modifies the incommunicado detention regime with a view to introducing greater guarantees for those concerned, such as audio and video recording of incommunicado detentions in police stations and a visit every eight hours by a forensic doctor and a doctor appointed by the national torture prevention mechanism.
Data-collection system
51. Measure 102 of the First Human Rights Plan provided for the design of an application for the collection of up-to-date data on cases of possible abuse or violation of the rights of persons in police custody. The application registers the acts for which police officers have been reported for human rights violations against detainees or persons in police custody.
F. Freedom of assembly and expression
Freedom of assembly
52. The right to unarmed peaceful assembly is, among other fundamental rights and public liberties, enshrined in article 21 of the Constitution, which specifies that the right is not subject to prior authorization but that the authorities should be notified in advance of assemblies taking place in public areas; assemblies “may be banned only where there are reasonable fears of disruption to public order and for the security of individuals and property”. These constitutional provisions are further developed in Organic Act No. 9/1983,
on freedom of assembly, which regulates the basic terms governing the exercise of this right.
53. The Protection of Public Safety Bill does not impair the ability to exercise the right to freedom of assembly and demonstration, as defined in the Constitution, and does not amend any articles of Organic Act No. 9/1983. The Bill merely sets forth a series of provisions on the punishment of violent, aggressive or coercive acts that arise from exercising the freedom to demonstrate or that affect public safety, such as holding unannounced or prohibited protests around vital infrastructure, participating in disruptions to public order in clothing that masks the face and hinders identification or assembling while carrying weapons or objects likely to cause injury.
Protection of journalists during protests
54. With the aim of promoting the conditions to enable State Security Forces and media personnel to work properly, a cooperation agreement was signed on 17 March 2011 between the Ministry of the Interior and the Spanish Federation of Journalist Associations to identify media personnel, thanks to distinctive vests, during protests that require police intervention.
G. Access to justice and protection of victims
Modernization of the justice system (recommendation 84/R.4)
55. Regarding access to justice, a new judiciary organic act is being negotiated with a view to modernizing the judicial system and making it more efficient by speeding up judicial response times. In that connection, the Action Plan of the Secretary-General of the Justice System 2012–2014 has been adopted with the aim of restructuring the system. In order to improve training, the Legal Studies Centre designs an annual in-service training plan, which is available to prosecutors, court clerks, forensic doctors, other judicial professionals and State attorneys. Act No. 18/2011, on the use of information and communication technologies in the administration of justice, was adopted in July 2011 to facilitate interaction between individuals and professionals and the judicial system.43
Legal aid
56. The economic crisis has posed challenges to the legal aid programme. In response, a legal aid bill is being prepared, addressing the need to guarantee the sustainability of the free justice system through improved resource management and greater oversight of its use.
The bill would increase the number of potential direct beneficiaries of the system, placing particular focus on the most vulnerable groups (victims of gender-based violence, terrorism and human trafficking; minors; and persons with physical disabilities who are victims of abuse or ill-treatment) and entitling them to legal aid irrespective of their ability to cover legal costs.
Protection of crime victims
57. Regarding the protection of crime victims, work is proceeding on the Crime Victim Status Bill, whose purpose is to ensure that Government entities provide as comprehensive assistance as possible to victims, both from a legal and social standpoint. This would imply not only reparation through a criminal trial but also the mitigation of other traumatic emotional effects brought on by their situation, independently from the proceedings. Based on the recognition of victims’ dignity, the bill’s goal is to defend their material and moral goods and, thereby, those of society as a whole. Special focus in this area is placed on victims of gender-based violence,44 terrorism and hate crimes.45
H. Children
Crimes against the sexual freedom of minors (recommendation 86/R.25)
58. Special efforts have been and are being made to combat crimes against the sexual freedom of minors. The ongoing reform of the Criminal Code establishes harsher penalties for this type of offence and raises the age of sexual consent to 16 years,46 thereby fulfilling a recommendation by the Committee on the Rights of the Child and improving the protection that Spain affords to minors, particularly in the effort to control child prostitution. Moreover, causing a child under the age of 16 to witness sexual acts or abuse of other persons has been explicitly criminalized, with sentences of up to 3 years’
imprisonment. For crimes involving prostitution, a clearer distinction is drawn between offences against adults and those affecting minors or persons with disabilities, for which the penalties are harsher and to which new aggravating circumstances apply in order to combat the most harmful cases of child prostitution. Particular attention is also paid to punishing child pornography, the legal definition of which is taken from Directive 2011/93/EU. The production and dissemination of such material is punished, as is knowingly attending exhibitionist or pornographic shows involving minors or persons with disabilities.
Child Protection Bill (recommendation 86/R.25)
59. Another very important measure under consideration is the approval of the Child Protection Bill, which will, inter alia, expedite placement and adoption procedures and include protection of the best interests of the child as an interpretative principle, substantive right and procedural rule.47 It will also ban persons convicted of offences against sexual freedom or exploitation of minors from professions involving regular contact with children, impose the obligation for public authorities, civil servants and professionals who learn of abuse of a minor in the performance of their duties to inform the Public Prosecution Service and give priority to foster care over institutional care, particularly for children under 3 years of age.
Protecting the best interests of children whose parents live apart (recommendation 86/R.25)
60. Another important line of action has been the protection of children whose parents live apart. To that end, the Shared Parental Responsibility Bill has been submitted to the Cabinet, stipulating that, in each specific case, it falls to the judge, who must act in the best interests of the child at all times, to determine whether a sole or shared custody arrangement is more appropriate, and to control the various aspects and content of parental relations. A Non-Contentious Jurisdiction Bill is also being processed. It seeks to update the procedure for returning minors in international abduction cases in order better to protect minors and their rights.
Protecting minors with behavioural problems (recommendation 86/R.23)
61. In an important development, the bill to supplement the Child Protection Act introduces the possibility for minors to be placed in specialized centres for the protection of minors with behavioural problems, where the use of restraining methods and measures to restrict fundamental rights and freedoms is allowed only as a last resort, with the aim of providing them with a suitable educational environment, correcting their behaviour and allowing their personality to develop freely and harmoniously.
62. In May 2010, the basic operating protocol for centres and/or homes providing care for minors diagnosed as having behavioural disorders was adopted; it regulates procedures for the care of minors and establishes guarantees of respect for their rights. Lastly, the Second National Strategic Plan for Children and Adolescents48 includes measures in favour
of minors with behavioural problems and specifies the bodies responsible for implementing them.
Protecting the children of persons who have been arrested or imprisoned (recommendation 84/R.3)
63. The Spanish prison administration runs various prison facilities designed to preserve the human rights of children under 3 years of age whose mothers are deprived of their liberty.
Caring for poor and socially excluded children
64. The Government is well aware of the importance of combating child poverty; for this reason it has included this objective at all levels of the 2013–2016 National Action Plan for Social Inclusion, in order to operate in various fields to prevent the intergenerational transmission of poverty.49
I. Rights of persons with disabilities
Bringing domestic legislation into line with the Convention on the Rights of Persons with Disabilities
65. Act No. 26/2011 and Royal Decree No. 1276/2011 brought Spanish legislation into line with the United Nations Convention on the Rights of Persons with Disabilities, a process that involved approving additional legislative, administrative and other measures.
Royal Legislative Decree No. 1/2013, approving the revised text of the General Act on the Rights and Social Inclusion of Persons with Disabilities, helped clarify all existing legislation on the matter. An amendment to the Civil Code and the Civil Procedure Act is currently being drafted to better adapt those laws to the requirements of the Convention.
The amendment will entail, inter alia, the introduction of new terminology abandoning the terms incapaz (incompetent) and incapacitación (incompetence) and their replacement with a reference to persons benefiting from judicially sanctioned supported decision-making, together with the new regulation on various formalities for protection and assistance in supported decision-making, the adaptation of the acts for which the person providing protection and assistance will require judicial authorization and an increase in checks on both the person affected and their property.
Right to education for persons with disabilities (recommendation 84/R.3)
66. An effort has also been made to improve the right of persons with disabilities to education, and chapter IV of the revised text of the General Act on the Rights and Social Inclusion of Persons with Disabilities is devoted specifically to the topic. The Spanish model is based on the concept of inclusive education, giving priority to inclusion in ordinary schools. In November 2010, a forum on the inclusion of pupils and students with disabilities in the school system was set up, and in June 2011, the Plan for the Inclusion of Pupils and Students with Special Educational Needs was adopted, in collaboration with the Spanish Committee of Representatives of Persons with Disabilities and the autonomous communities.
J. Right to education
New Act on the Improvement of Educational Quality and accompanying policy measures (recommendations 84/R.47 and 84/R.48)
67. On 9 December 2013, the Education Act (No. 2/2006) was amended by the Act on the Improvement of Educational Quality (Organic Act No. 8/2003), which has the following aims: to reduce the early school leaving rate; to improve educational outcomes in line with international standards, in terms of the comparative rate of both excellent pupils and students who have successfully completed compulsory secondary education; to boost employability and to encourage entrepreneurship in students.
68. Education is compulsory in Spain up to the age of 16. Currently, US$ 10,094 is allocated to each pupil in State education every year, 21 per cent more than the average within the Organization for Economic Cooperation and Development (OECD) and the European Union,50 and twice as much as a decade ago (from US$ 18,927 million in 2000 to 36,012 million in 2010). The student-teacher ratio is lower than the OECD average (10.1 in Spain, as opposed to 13.7 in OECD countries).51 Moreover, State spending on pre-primary education is equal to 0.9 per cent of the gross domestic product (GDP), compared to 0.5 per cent of the combined GDP in OECD countries. In recent years, there has been a gradual reduction in the percentage of citizens aged 18 to 24 who have completed the first stage of secondary education (CINE 2) but are no longer studying or in training. The figure was 31.2 per cent in 2009 and 24.9 per cent in 2012.
69. To address the challenges that have arisen in the education sector in Spain over the last few years, a number of programmes have been adopted to strengthen education and improve its quality and accessibility: the Territorial Cooperation Programme to Reduce Early Dropouts from Education and Training; the Enhancement, Guidance and Support Plan (Plan de Programas de Refuerzo, Orientacion y Apoyo (PROA)); the Educa3 Plan for nursery education; and the Territorial Cooperation Programme to Improve Foreign- Language Learning. There are also several programmes that focus on groups with specific needs, such as the Gypsies, and broadly incorporate the gender perspective. The Ministry of Education, Culture and Sport also promotes activities in favour of lifelong training to enhance access to the labour market, increase job opportunities and boost recognition of informal education by valuing work experience.
70. Moreover, the Act on the Improvement of Educational Quality makes specific provision in the basic education curriculum for human rights education, which, pursuant to Royal Decree No. 126/2014, shall be a cross-cutting component included in all subjects.
This topic is also accorded particular importance in the social science curriculum.
K. Right to health
Reform of the national health system
71. In 2012, owing to the economic crisis besetting Spain, the Ministry of Health, Social Services and Equality launched a health-care reform to render our national health system sustainable and ensure that it is universal, public and free for all Spanish residents, bearing in mind that it has been necessary to tackle an accumulated debt of 16 billion euros and a budget deficit growing at an annual rate of 5 per cent, which would have increased the debt by 175 per cent between 2009 and 2011. This reform has made it possible to maintain the high quality of health-care services and has also aided the economic recovery. Various measures have been adopted in this regard that devote particular attention to vulnerable groups:
(a) Insurance and health-care services: Royal Decree-Law No. 16/2012, on urgent measures to guarantee the sustainability of the national health system and enhance the quality and security of its services, has clarified the conditions of access to public health care through the concepts of “insured party” and “beneficiary”, and has legally regulated a genuine mechanism granting equal recognition to those groups. According to the 2013 OECD report entitled “Health at a Glance”, 99 per cent of the Spanish population has public health insurance and 13.4 per cent also has optional private coverage. Coverage is therefore provided to virtually all Spanish citizens and to residents who have acquired this right. Foreign nationals who are not registered or authorized residents of Spain will also receive publicly funded health care through the national health system as follows:
(i) Emergency care in the event of serious illness or accident, whatever the cause, until they are discharged;
(ii) Prenatal, delivery and postpartum care;
(iii) In all cases, foreign nationals under the age of 18 shall receive health care under the same conditions as Spanish nationals.52
In cases where foreigners in an irregular situation in Spain do not have health coverage or resources, social service authorities in each autonomous community shall determine the type of assistance provided, in accordance with Royal Decree No. 576/2013. This Decree extends the range of health care provided for in the national health system’s common core portfolio of care services to persons requesting international protection and victims of human trafficking who are authorized to stay in Spain, for as long as their situation persists.53
(b) In Spain, coverage for all persons, regardless of their administrative status, extends to free disease prevention services and public health programmes, such as the diagnosis and treatment of communicable diseases (tuberculosis, human immunodeficiency virus), vaccination programmes and programmes to prevent and control communicable diseases.54 There are also specific treatment protocols in the event of a mass influx of immigrants.
(c) With regard to pharmaceutical benefits, Royal Decree-Law No. 16/2012 modified the patient contribution system by introducing three criteria to regulate patient contributions (income, age and severity of the illness), thereby improving equity.
(d) Lastly, several projects are being implemented in the field of electronic health, such as the nationwide health card, electronic prescriptions and digital medical histories, which will increase efficiency, reduce the duplication of diagnostic tests and facilitate the administrative tasks carried out by health professionals, which will in turn alleviate pressure on the heath-care system by reducing the number of visits, facilitate the movement of patients in the country and give them greater security.55
L. Right to housing
Change in the housing model: promotion of renting and preservation of the existing housing stock
72. In recent years, a change in the Spanish housing model has been encouraged to balance the two forms of access to housing (buying and renting), promote the maintenance and preservation of the existing housing stock and guarantee the right to housing. In this connection, the following laws have been adopted: Act No. 4/2013 on the greater flexibility and promotion of the housing rental market; Act No. 8/2013 on urban rehabilitation, regeneration and renovation; and Royal Decree No. 233/2013, which governs the 2013–
