COMMITTEE ON ENFORCED DISAPPERANCES EXAMINES REPORT OF SPAIN
6 November 2013
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Spain on how that country implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Presenting the report, Ana Menendez Perez, Permanent Representative of Spain to the United Nations Office at Geneva, said Spain’s commitment to fighting the phenomenon of enforced disappearance was indicated by its signing of the Convention. The Working Group of the Committee had recently visited Spain and all access had been granted to them.
Jose Luis Viada, State Lawyer in the Ministry of Justice of Spain, also presenting the report, said that it was structured to reflect Spain’s acknowledgement of the crime of acts of enforced disappearance in its national legislation, according to the terms of the Convention. Prior to the ratification and entry into force of the Convention in 2010, the Spanish legal order had developed provisions covering much the same territory. This had then led to harmonisation of the national law and the international instrument, and extradition legislation included the principle of non-refoulement. The rights of detainees also formed part of the Spanish law. With regard to the matter of universal jurisdiction, an amendment had been made to the original law to align it with the best of international practice.
During the dialogue, Experts focussed on possible contradictions in Spain’s adoption of the Convention and other laws in its domestic legislation, namely with respect to historical cases of enforced disappearance dating from the Spanish Civil War and Franco eras, and modern concerns about the rights of detainees, including migrants and those held on suspicion of terror offences. Other matters raised included the concept of amnesty and statutes of limitation as applied under Spanish domestic law vis-à-vis the Convention, extradition and universal jurisdiction, record-keeping and provisions in the Convention concerning truth and historical memory, and the efforts Spain was making with regard to disappeared children and their families.
In concluding remarks, Committee Expert and Rapporteur for the report of Spain, Alvaro Garce Garcia Y Santos, said that the modern social-democratic tradition of Spanish justice was hugely influential, particularly in Latin America, and the Committee worked in a spirit of respect for Spain in order enable it to tackle both historical and contemporary forms of enforced disappearance.
Ms. Menendez Perez, in concluding remarks, said that Spain interpreted the Convention and the competence of this Committee as a forward-looking instrument and mechanism, and that there was a danger of concentrating excessively on acts committed in the past. However, she thanked the Committee for its professionalism and attention to detail.
The delegation of Spain included representatives of the Ministry of Justice, the Ministry of Interior, the Ministry of Finance and the Permanent Mission of Spain to the United Nations Office at Geneva.
The Committee’s concluding observations and recommendations on the initial report of Spain will be adopted before the Committee concludes its session on Friday, 15 November.
The next public meeting of the Committee will be on Thursday, 7 November at 3 p.m. when it will meet separately with States parties, United Nations bodies and specialized agencies, and finally with non-governmental organizations and civil society. It will also discuss matters related to the methods of work of the Committee.
The initial report of Spain (CED/C/ESP/1) can be seen here.
Introduction of the Report
ANA MENENDEZ PEREZ, Permanent Representative of Spain to the United Nations Office at Geneva, said that Spain’s commitment to fighting the phenomenon of enforced disappearance was indicated by its signing of the Convention. It also supported the work of Committee Expert Juan Jose Lopez Ortega. The Working Group of the Committee had recently visited Spain and all access had been granted to them. On the recent international day for the victims of enforced disappearance in August, the Government of Spain had issued a full statement in support of the aims of this awareness-raising measure.
JOSE LUIS VIADA, State Lawyer in the Ministry of Justice of Spain, said that the report that Spain had submitted to the Committee was structured to reflect Spain’s acknowledgement of the crime of acts of enforced disappearance in its national legislation, according to the terms of the Convention. The terms of this offence included that it was committed by State actors and that the details of the victim’s whereabouts were not given to the relevant parties. The terminology in the law encompassed the generic lack of notification of detainees’ whereabouts in the penal system or indeed their removal from that system. The illegal detention of persons had been acknowledged by Spain as a crime against humanity or a war crime. Prior to the ratification and entry into force of the Convention in 2010, the Spanish legal order had developed provisions covering much of the same territory. This had then led to harmonisation of the national law and the international instrument. Extradition matters were included in this development, including acknowledging the principle of non-refoulement. Meanwhile, the rights of detainees also formed a plank of the Spanish law which made provisions for those rights, particularly with regard to terror suspects, and included up to five days of incommunicado detention. Training of security forces was also a feature of the law. With regard to the matter of universal jurisdiction, an amendment had been made to the original law to align it with the best of international practice. Spain’s laws were to be respected as the expression of the democratic will of its people.
Questions by Committee Experts
ALVARO GARCE GARCIA Y SANTOS, Committee Expert and Rapporteur for the report of Spain, thanked Spain for urging other States to sign up and ratify the Convention and taking a leading role in its implementation through the mechanism of the Universal Periodic Review. Could the delegation inform the Committee of the timing of obligations stemming from previous national legal standards insofar as they were compatible with the Convention? When would the draft of the new penal code be approved in the legislature? The Committee wanted to know more about the implementation of various aspects of the Convention vis-à-vis domestic law, particularly as regards to statutes of limitations and historic cases dealt with under military law. Could the delegation give more details with regard to the protection of witnesses?
LUCIANO HAZAN, Committee Expert and Co-Rapporteur for the report of Spain, asked about Article 12 of the Convention obliging States to investigate cases of enforced disappearance. How did Spain organize its justice system in order to investigate such cases? Were there special courts or processes? Were cases investigated regardless of complainants bringing forward specific charges? What resources did Spain devote to this? What interpretation did Spain make of historic amnesties? What was the status of judicial processes looking into cases dating from the Spanish Civil War and the years of the Franco regime? What merit was there in the accusation from some non-governmental organizations that there had been a systematic shelving of such cases? Turning to Article 13 of the Convention, the Expert asked if Spain had considered making the phenomenon of enforced disappearance part of a slate of crimes not considered “political”.
A Committee Expert said that the Committee understood that international laws had an interpretive role under Spanish law and asked the delegation to clarify this. Secondly, did the existing provisions in the area of enforced disappearance in Spanish law reflect the complexities of the phenomenon as spelled out in the Convention?
Another Expert, noting that the crime was a “continuous” crime under the terms of the Convention, wanted to know when under Spanish law the existence of the crime came into being, given that there appeared to be no statute of limitation for crimes against humanity in the legal system of Spain.
Responses by the Delegation
In response to these questions and comments and others, the delegation said crimes against humanity were something imprescriptible under Spanish law, albeit not retroactively. However the “continuous” nature of the crime of enforced disappearance did mean that as long as the victim remained missing, either dead or alive, the crime remained active. With regard to the articles in the Spanish law connected to states of emergency, although there had been none, the Constitution had suspension-of-law provisions. However, in the case of enforced disappearance, these did not apply.
Turning to the reform of the criminal court, it was difficult to say when this reform would take effect due to political uncertainties but it was envisaged that the reform would be completed by spring 2015, or in other words by the end of the term of the current administration.
Answering the question about the organisation of the criminal justice system with regard to the crime of enforced disappearance, it could be said that the system treated this crime along the lines that it would treat other crimes against humanity that was to say in the main criminal court. In relation to the jurisdiction of this court, the particulars of the Spanish court went beyond that spelled out in the Convention and by which victims did not have to be Spanish citizens to seek justice in the main criminal court, and crimes not committed on Spanish soil could also be dealt with in this court. Enforced disappearances could therefore in certain circumstances fall under its jurisdiction. Furthermore, when it came to stolen children, for example, there were mechanisms to ensure jurisdiction across or beyond the territory of Spain.
The police and the civil guard had specialised units to investigate enforced disappearances and these units were trained in international law and human rights law.
Turning back to the imprescriptability of laws and the recent ruling of the Supreme Court, the shelving of cases referred to by the Committee related mostly to crimes committed during the Spanish Civil War or the Franco regime on the grounds that the persons held accused of grave crimes such as enforced disappearance had died and were thus unable to be held criminally responsible now or in the future. In other cases the statute of limitations had run out and the Supreme Court ruling reflected the law as it stood.
There was no fixed set of measures with regard to the protection of detainees and witnesses but there were mechanisms available to the judge to ensure their protection.
With respect to including enforced disappearances in extradition-related legislation, there had been no specific detail about this crime in the recent agreement signed with Kazakhstan beyond general crimes-against-humanity principles. There was generally a system of extradition on which it was contingent on whether the individual was accused of crimes of the level of enforced disappearance on the one hand, and whether they would be subject to cruel or unusual punishment once extradited on the other.
With regard to amnesty laws, these were enacted after the restoration of democracy in Spain after 1977 with popular approval and were applied to crimes committed by all strands of Spanish political life, not just Franco regime State actors, and were part of an attempt to move beyond the Spanish Civil War era in the history of the country. The repeal of this law would not solve anything and would be difficult to swallow in Spanish legal culture. Other criminal charges would come into play if the amnesty law was repealed, such as time-barred crimes, for which the defence of the running out of the statute of limitations would then be employed. At the time it was enacted, the Spanish judiciary did not call into question the amnesty law. The European Court of Human Rights had also recognised this, and gave some leeway to Member States to enact such laws as were deemed proper in circumstances such as those that were seen in post-Franco Spain. The questioner asked whether the amnesty law was a barrier to the full enactment of the Convention in the current domestic law of Spain. The delegation said that since the law was enacted before the Convention, and by a democratic government, the assessment had been made that there was no conflict between the Convention and the current domestic law of which it was now part.
With regard to the status of international law under the Constitution of Spain, it was incorporated via the organic law of the Spanish State without issue or affect on Spanish sovereignty. For example, a recommendation of an international body would be recognised with Spanish law as a matter of course through the provisions made for this purpose in its Constitution. This was a legal obligation, not merely a moral one or a statement of goodwill. This obviously applied to criminal law, because the criminal system had to recognise a crime in order to prosecute it. This did not happen with respect to the European Union because in that case Spain had handed over some of its sovereignty to that body and its laws and norms were automatically applied to Spain. The question then arose whether the incorporation of the provisions of the Convention into Spanish domestic law was efficient or not.
Additional Questions by Committee Experts
ALVARO GARCE GARCIA Y SANTOS, Committee Expert and Rapporteur for the report of Spain, said that the Committee was still waiting to hear information from the delegation about recent complaints of enforced disappearance. The Committee would also like the delegation to give information about whether Spain foresaw making enforced disappearance a serious criminal matter under each and every imaginable circumstance without exception. With regard to protection measures brought against detainees held incommunicado or in solitary confinement, had the delegation any thoughts on whether such detention might have the opposite effect? What could the delegation tell the Committee about the historic matter of enforced disappearance and current relations with Argentina?
LUCIANO HAZAN, Committee Expert and Co-Rapporteur for the report of Spain, asked for clarification about the rights of detainees held incommunicado. As for the delegation’s comments regarding the death of persons who may or may not stand accused of such crimes of enforced disappearance, could the delegation clarify whether the statement that all avenues of investigation had been exhausted to determine that nobody was still alive who could have committed crimes as they had been defined by the Convention; what exactly did the delegation mean? Mr. Hazan also asked the delegation if the victims of enforced disappearance had access to police files, government files, cemetery records and so on. A further clarification was requested on the matter of extradition.
A Committee Expert said that doubts remained with regard to the delegation’s explanation of the statute of limitation and retroactive applicability. The Committee understood that in some cases the State could waive statutes of limitation, was this the case in Spain? Meanwhile the continuous nature of the crime of enforced disappearance, which had nothing to do with time limits, implied that under the Convention there was always the possibility of victims seeking redress. Was that how the delegation saw it?
Responses by the Delegation
Responding to questions, the delegation said that statutes of limitation were perceived as a guarantee of the time needed to solve and punish the crime and they existed for all crimes in all advanced countries. Exceptionally, crimes against humanity may stand apart but in general this was reprehensible to Spanish legal culture. It was the delegation’s understanding that the special, continuous nature of the crime of enforced disappearance meant that exceptions could be made when all other avenues had been exhausted. This tied in with the issue of death. When the victim had died because he was murdered in a case of enforced disappearance, then the crime was treated as murder. If the perpetrator was caught years later, it would be subject to the statutes of limitation that apply to murder.
Turning to incommunicado detention, detainees would always have the right to communicate with their lawyers. The destruction of evidence and that kind of thing had to be avoided but the right to legal representation would be respected.
With regard to extradition, in no case or circumstance could enforced disappearance be likened to a political crime.
As for access to information, victims did have access to administrative files contingent on their status as victims and their rights were currently subject to ongoing legislation.
Questions by Committee Experts
ALVARO GARCE GARCIA Y SANTOS, Committee Expert and Rapporteur for the report of Spain, said that according to the report there were no exceptions to the principle of non-refoulement but Amnesty International and others had recorded many thousands of expulsions of foreigners; could the delegation explain what procedures were in place for this process and what measures were undertaken to ensure that those expelled were not at risk? Furthermore, certain detention centres for refugees were said to be “unconstitutional”; could the delegation shed light on this and other matters relating to the detention and expulsion of refugees? Turning to the matter of incommunicado detention, the Committee would like to know why Spain would want to keep this system pursuant to any legislation. Could the delegation give more information about the advisory body mentioned in the report and how it viewed incommunicado detention? Could the delegation speak about the resourcing of a national preventive mechanism as mentioned in the report? According to information obtained by the Committee, the national preventive mechanism was staffed by just seven people who were dealing with many thousands of detainees in various contexts; did the Committee consider this to be sufficient?
Another Expert welcomed the human rights training that was being given to security forces but asked whether there was any specific training on the provisions of the Convention more specifically. What plans were there in place to extend knowledge of the Convention more broadly? Figures of thousands of victims dating from the Spanish Civil War period had been quoted but did the State keep a comprehensive register of these names? Were the graves of the victims recorded? Civil society had asked for the establishment of a truth and reconciliation mechanism; had the State considered this as a way of meeting its obligations under the articles of the Convention dealing with truth and historical memory?
Turning to reparations, the Committee would like a more detailed understanding of the State’s methods and actions. Returning to questions of truth and historical memory, the Committee understood that cutbacks had been imposed on the activities of bodies dealing with historical memory and some of its bodies had been abolished; could the delegation give more detail on this and the budgets that had been set aside to deal with searching for the disappeared and their remains? How did the State organize work regarding DNA analysis and other methods of identifying the victims of enforced disappearance? With regard to the disappearance and abduction of children, the Committee would like to know more about the organization of registers and methods of identifying victims. Did the concept of victim include the relatives of disappeared children as the Convention required? The Committee noted that the report had criminalised the specific acts of child abduction, but how did this link with enforced disappearance?
Responses by the Delegation
Regarding consultation with civil society during the drafting of the report, the delegation asserted that the office of the human rights ombudsman was included at all stages and a consultation process was held with civil society during its first draft. The process included all interested non-governmental organizations and civil society groups who were contacted by e-mail. Ten such groups expressed an interest, including Amnesty International and the All Stolen Children Are My Children Association, and comments received were reflected in the final report. This could be viewed as a standard process.
The first human rights plan was approved in Spain on the anniversary of the Vienna Declaration and on going assessments had been in place since then in preparation for the adoption of a second human rights plan, which was currently underway. The updated plan, covering an array of human rights obligations, would reflect Spain’s treaty obligations including those under the International Convention on the Protection of All Persons from Enforced Disappearance. References to the Convention, reports to this Committee and the visit of the Working Group would all be reflected in the drafting of the plan. Measures regarding historical cases from the Spanish Civil War and Franco dictatorship had been accounted for in this process.
Turning to the question of recent complaints made about enforced disappearances dating from the Spanish Civil War, mass graves had recently been uncovered, as police documents clearly showed.
The military code of Spain contained sanctions for the crime of enforced disappearance, with penalties of up to 15 years’ imprisonment. With regard to criminal responsibility when following orders, the military code could view this as a mitigating circumstance but not a defence if the act was clearly illegal. Military justice envisaged certain laws to apply in circumstances of war and these were clear and well-understood.
With regard to holding detainees incommunicado, the Committee should understand that detainees retained full rights under the supervision of a judge in terms of habeas corpus, access to a lawyer and so on.
On the question of Spain’s cooperation with and assistance to Argentina with respect to dealing with crimes committed during the Spanish Civil War, the delegation said that commissions had been set up and information provided to this end. The Spanish judiciary had respect for jurisdiction questions but believed there was a case under the Treaty of Rome to pursue justice under universal jurisdiction provisions.
Turning to the rights of migrants who might be returned to their country of origin, Spain’s Ministry of Foreign Affairs provided information to the security authorities on a case-by-case basis. People were interned in camps not because they were foreigners but because they had broken a migration law and sanctions were applied. Conditions in detention camps could always be improved. There was a raft of legal guarantees to protect the rights of detained migrants. Spanish law strictly prohibited illegal and secret detention. Incommunicado detention was not secret detention: it was limited in time and applied only to organized crime and terrorism. There were no plans to abolish incommunicado detention. Changes might be envisaged to the provisions of such detention, but it was very unlikely it would be abolished.
With regard to registers of detainees, these were regulated and compulsory for the three autonomous police forces with competence in this area. Such logbooks were held by the national police force and the civil guard. They covered visits, incidents and medical matters concerning the individual during his/her detention.
Turning to the staffing and budgetary requirements of the national preventive mechanism in the ombudsman’s office, this information would be returned to the Committee in writing. In general, it could be said that it was true that in times of economic crisis such as now there could be a squeeze on resources, however the ombudsman office did have access to resources to allow for the effective functioning of the office.
The Ministry of Justice had in place on going training regimes for the police and other law enforcement bodies to keep them up to date with international human rights law and all the conventions to which Spain was a party.
The notion of victim under Spanish law included indirect victims such as relatives of the disappeared. In connection with stolen children, a circular from the public prosecutor’s office issued in 2012 strengthened prosecutors’ leeway in taking action against these crimes. There was a unit devoted to resolving jurisdictional and procedural matters in the cases of stolen children. The Government had set up a Working Group to looking into the issue, regardless of on going legal cases. Among the measures adopted as a result of the work of this Working Group was the setting up of an office in the Ministry of Justice to field and investigate suspicions of irregular adoption. Clinical and medical information could be supplied by the Ministry of Health, however difficulties remained due to the historical nature of the problem as many files no longer existed. The Ministry of Interior could look into old complaints and also birth records. These information gathering actions could result in a file within which the results of DNA tests could be stored, and, furthermore, cross-referenced with other DNA profiles to build a clearer picture. These procedures were free of charge in the first stages, while a final check of files cost roughly 100 euros.
As for the figures quoted by the Committee from non-governmental organizations, there could be many ways to compile these but the State figures amounted to a total 331 on going files concerning enforced disappearance, affecting 394 people. With respect to identification processes, there was a DNA databank concerning historical cases in the Ministry of Justice. A second DNA databank was managed by the forensic sciences department and this held human remains.
Questions from Committee Experts
ALVARO GARCE GARCIA Y SANTOS, Committee Expert and Rapporteur for the report of Spain, said the Committee took note that the delegation would provide budgetary information regarding the national human rights institution in writing, but could the delegation shed light on access granted to detainees and how this was arranged. Could the delegation expand on the role of habeas corpus as it related to detainees.
Another Expert asked for more information on the DNA databanks and what had been the result of cross-referencing. The Spanish press had reported that bodies had been reburied after exhumation from a mass grave without being identified. Why? Additionally, given that the Committee had heard of at least 1,100 lodged complaints regarding enforced disappearances, why was the Government handing only 331 active files? What was the reason for this mismatch? Could the delegation please expand on legal procedures for exhumation, the processes undertaken, psychological support for family members and so on?
Another Expert returned to the matter of legal absence and asked the delegation to elucidate on what the regime under Spanish law was for this issue.
Responses by the Delegation
Turning to the exhumation and reburial of bodies and their non-identification as reported in the press, the reasons for this were that there was either no extractable DNA or that no match was made.
The delegation underlined that autonomous police forces operated under national regulations with regard to the rights and records of detainees. With regard to habeas corpus, it could only be suspended in a state of national emergency, not automatically though. It could also be added that this did entail the lifting of criminal responsibility for acts committed during such extreme measures.
Turning to the discrepancy between the number of files and the numbers given by civil society, the delegation found it difficult to say why this was since the service of submitting DNA and putting it before the process to obtain clarification and justice was open to all.
As for support for family members of the disappeared, the Ministry of Justice had an agreement with the national psychologists’ society to provide psychological support services to victims’ families.
Concerning the legal presumption of death, Spanish law did not recognise this in the absence of a death certificate. Rather, the Spanish legal system had a presumption of life.
ALVARO GARCE GARCIA Y SANTOS, Committee Expert and Rapporteur for the report of Spain, said he valued the non-confrontational nature of the dialogue and looked forward to receiving such information as could not be provided at this session in the future. The aims of the Committee were aligned with the Spanish constitution. “Truth is the daughter of time” as the Romans said. The modern social-democratic tradition of Spanish justice was hugely influential, particularly in Latin America. So the Committee worked in a spirit of respect for Spain to enable it to tackle both historical and contemporary forms of enforced disappearance.
LUCIANO HAZAN, Committee Expert and Co-Rapporteur for the report of Spain, paid tribute to Spain’s tradition of offering refuge to migrants in the spirit of justice and thanked the delegation for its report. Spain was also to be praised for leading ratification efforts of the Convention. Although these sessions had been fruitful, it was important to acknowledge that civil society groups had travelled to make contact with the delegation in Geneva. It seemed also that not much progress was being made in Spain with regard to historical memory, truth and prevention as envisaged in the scope of the rules and standards of the Convention.
ANA MENENDEZ PEREZ, Permanent Representative of Spain to the United Nations Office at Geneva, said that the process had been useful for the delegation and she hoped it had been useful to the Committee. Spain interpreted the Convention and the competence of this Committee as a forward-looking instrument and mechanism. The delegation had answered questions in this meeting that it felt were outside the competence of the Committee. The moves undertaken in 1978 by the Spanish State would not be revisited, and the delegation believed the Committee had an excessive focus on the past. The delegation believed that both the Committee and the Convention were tools to enable the world and Spain to move forward. Any suggestion made by the Committee that the Spanish legal system was not impartial and independent was to be rejected. The delegation thanked the officers of the Committee for their professionalism in running this meeting, and the interpreters. In conclusion, Spain would continue with its commitment to the victims of enforced disappearance in many and various ways.
EMMANUEL DECAUX, Committee Chairperson, said that the Committee had taken note of the remarks made, adding that the Convention was applied to Spain as it was to other States parties. He did not believe there was any overlap in the work of the Committee with the Working Group on enforced disappearances, which was meeting in Geneva now. He thanked the delegation for the intensity and depth of their presentation.
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